re: central 70 project; rfp addendum no. 4 addendum … · authority, license status, applicable...

July 28, 2016 High Performance Transportation Enterprise 4201 East Arkansas Ave., Room 230 Denver, CO 80222 Colorado Bridge Enterprise 4201 East Arkansas Ave., Room 230 Denver, CO 80222 RE: CENTRAL 70 PROJECT; RFP ADDENDUM NO. 4 Dear Proposer,

We refer to the Request for Proposals to Design, Build, Finance, Operate and Maintain the Central 70 Project issued September 15, 2015, and September 29, 2015 (as amended December 23, 2015, by Addendum No. 1, February 23, 2016, by Addendum No. 2 and June 14, 2016, by Addendum No. 3 the “RFP”). Capitalized terms used but not defined herein have the meanings given to them in the RFP. This letter, together with the documents attached to it (except the comparison document) constitutes Addendum No. 4 to the RFP (“Addendum No. 4”). This Addendum No. 4 modifies the RFP pursuant to Section 1.3.1 of Part C of the ITP. Attached hereto are the following documents, each of which hereby replaces in its entirety the corresponding document (or, as applicable, relevant part thereof) included in the RFP immediately prior to the date of this letter. Project Agreement Schedules:

1. Schedule 2 (Representations and Warranties) 2. Part A (Form of Enterprises’ Legal Opinion) of Schedule 19 (Forms of Direct Agreements)1

3. Schedule 22 (Forms of Legal Opinions)

Schedule 19 is accompanied by a comparison document showing changes made since the most recent prior release of such document; such comparison is provided for your convenience only and does not constitute part of the RFP. Proposers are encouraged to submit any RFP Comments with respect to Addendum No. 4 on or before 9:00 am (Denver, Colorado time) on Thursday, August 4, 2016. Such date and time shall be deemed to be an RFP Comment Deadline for purposes of Section 2.2 of Part C of the ITP as it applies to this Addendum No. 4. Please also note that: - Schedule 19, as revised, reflects the Enterprises’ consideration of Proposer comments received by the

Enterprises in response to both Addendum No. 2 and Addendum No. 3, as well as comments received from TIFIA.

- A complete draft of Schedule 25 (Dispute Resolution Procedures) will be released in a future Addendum. - Addendum No. 4 is simultaneously being released to each Proposer through the Secure Project DMS. A

public release version will also be made available to all other interested parties through the Project website at: central70.codot.gov.

1 For certainty, Part B (Form of Developer Legal Opinion of Schedule 22 (Forms of Legal Opinions) is not amended or replaced by this Addendum No. 4.

2

Further, in advance of our forthcoming August one-on-one meeting, we wanted to make you aware of the following changes that we have already decided to make to the Supervening Event regime in the Project Agreement. The following events will now be included in the definition of “Compensation Events”: (1) discovery of any Unexpected Historically Significant Remains (current Relief Event a.iii.A.); (2) discovery of any Unexpected Endangered Species (current Relief Event a.iii.B.); and (3) the issuance of any temporary restraining order etc. (current Relief Event a.iv). These adjustments will be reflected in a future Addendum. Please also note that we are continuing to consider your remaining comments on the Project Agreement and ITP and expect to discuss those with you in your August meeting and, to the extent appropriate, respond to them through the issuance of a future Addendum in line with prior practice. Except as expressly modified by this Addendum No. 4, the RFP for the Central 70 Project otherwise remains unchanged. Sincerely,

Nicholas Farber Designated Representative Colorado Bridge Enterprise High Performance Transportation Enterprise

Central 70 Project: Project AgreementSchedule 2 (Representations and Warranties)

Addendum No. 4Release of July 28, 2016

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Schedule 2

Representations and Warranties1

Part A: Representations and Warranties of Developer

(a) Organization; Power and Authority. Developer:

(i) is a [type of organization], duly [incorporated] [organized], validly existing and[, wherelegally applicable,] in good standing in accordance with the laws of [ ];

(ii) is authorized to transact business in, and is registered with the Secretary of State in, theState; and

(iii) has the [corporate] power and authority to:

(A) transact the business that it transacts and proposes to transact pursuant to theProject Agreement; and

(B) execute, deliver and perform each of the Project Agreement, each PrincipalSubcontract and each other Subcontract to which Developer is a party, eachFinancing Document and each Enterprise Closing Agreement to which it is aparty (collectively, the “Developer Agreements”).

(b) Authorization and Due Execution.

(i) Each Person executing any Developer Agreement on behalf of Developer has been (or,at the time of execution, will have been) duly authorized to execute and deliver suchdocument on behalf of Developer.

(ii) The execution, delivery and performance of each Developer Agreement by Developerhas otherwise been duly authorized by all necessary [corporate] action of Developer.

(iii) Each Developer Agreement has been (or at the time of execution and delivery will havebeen) duly and validly executed and delivered by Developer.

(c) Enforceability. Each Developer Agreement constitutes (or at the time of execution and deliverywill constitute) a legal, valid and binding obligation of Developer, enforceable against Developerand, if applicable, each Equity Member holding an interest in Developer, in accordance with itsterms, subject only to applicable bankruptcy, insolvency and similar laws affecting theenforceability of the rights of creditors generally and general principles of equity.

(d) No Conflicts. The execution, delivery and performance by Developer of any DeveloperAgreement does not and will not contravene any:

(i) Law applicable to Developer that is in effect on the date of execution and delivery of eachDeveloper Agreement;

(ii) organizational, corporate or other governing documents of Developer;

(iii) agreement, judgment or decree to which Developer is a party or is bound; or

(iv) other obligation that is binding on Developer.

(e) Consents and Approvals.

(i) Prior to the Agreement Date, Developer familiarized itself with the requirements of anyand all Law, including Laws applicable to the use of Federal funds, and the conditions ofany Governmental Approvals or Permits necessary to perform its obligations under theProject Agreement at the time and in the manner required.

(ii) Developer, as of the date on which this representation and warranty is given or repeated,has acquired any and all such Governmental Approvals and Permits necessary to

1 This Schedule will be revised prior to execution of the Project Agreement, to the extent appropriate, to reflect Developer’s finallegal form and any relevant aspects of its Subcontracting arrangements.



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perform its obligations under the Project Agreement that fall due for performanceimmediately on or following such date, which Governmental Approvals and Permits arerequired to be obtained by Developer pursuant to the Project Agreement, and, as of suchdate, all such Governmental Approvals and Permits are in full force and effect.

(iii) Developer has no reason to believe that any such Governmental Approval or Permitrequired to be obtained by Developer pursuant to the Project Agreement will not begranted in due course and thereafter remain in effect so as to enable the Work toproceed in accordance with the Project Agreement.

(f) Developer Default. No Developer Default has occurred and is continuing, and no fact or eventexists that with the passage of time or giving of notice would constitute a Developer Default.

(g) Applicable Law. Developer is not in breach of any Law that would have a material adverseeffect on the Work or the performance of any of its obligations under the Developer Agreements.

(h) Registrations, Permits and Licenses.

(i) All Work to be performed (directly or indirectly) by Developer will be performed:

(A) by or under the supervision of Persons who hold all necessary or requiredregistrations, permits or approvals to perform the relevant part of the Work andvalid licenses to practice in the State; and

(B) by personnel who are professionally qualified to perform the Work in accordancewith the Developer Agreements.

(ii) Developer and the Principal Subcontractors have maintained and complied with, andthroughout the term of this Agreement will maintain and comply with, all requiredauthority, license status, applicable licensing standards, certification standards,accrediting standards, professional ability, skills and capacity to perform the Work.

(i) Due Diligence; Reasonable Investigation.

(i) The statements set out in Sections 3.1.a, 3.1.b and 3.2.1 of the Project Agreement aretrue and accurate.

(ii) On the basis of:

(A) the due diligence conducted by the Preferred Proposer and the Developer-Related Entities as referred to in Sections 3.1.b and 3.2.1 of the ProjectAgreement; and

(B) the subsequent such diligence of the Project, the Project Information and the Siteas has been conducted by Developer:

(I) Developer is familiar with and accepts the physical requirements of theWork, has evaluated all the constraints affecting design and constructionof the Project and has reasonable grounds for believing and believes thatthe Project can be designed and built within such constraints; and

(II) Developer has obtained for itself all necessary information regarding therisks, contingencies and other circumstances which may influence oraffect Developer’s ability to perform its obligations under the ProjectAgreement and any other factors which would affect its decision to enterthe Project Agreement or the terms on which it would do so.

(j) Financial Model.

(i) The Financial Model:

(A) was prepared by or on behalf of Developer in good faith;

(B) was audited and verified by an independent recognized model auditorimmediately before the Agreement Date;



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(C) fully discloses all financial assumptions and projections that Developer has usedor is using in making its decision to enter into this Agreement and in makingdisclosures to rating agencies, potential equity investors and Lenders;

(D) includes only formulas that are:

(I) mathematically correct and suitable for making the projections referred toin Section (j)(i)(E) of this Part A, and

(II) the same financial formulas that Developer utilized and is utilizing in theFinancial Model in making its decision to enter into the ProjectAgreement and in making disclosures to rating agencies, potential equityinvestors and Lenders; and

(E) represents the projections that Developer believes in good faith are the mostrealistic and reasonable for the Project as of the date on which thisrepresentation and warranty is given or repeated, provided that such projections:

(I) are based upon a number of estimates and assumptions;

(II) are subject to significant business, economic and competitiveuncertainties and contingencies; and

(III) accordingly, are not a representation or warranty that any of theassumptions are correct, that such projections will be achieved or thatthe forward-looking statements expressed in such projections willcorrespond to actual results.

(ii) Developer has reviewed all Law relating to Taxes, and has taken into account allrequirements imposed by relevant Law in preparing the Financial Model.

(k) Legal Proceedings. There is no:

(i) action, suit, proceeding, investigation or litigation pending and served on Developer orthe Equity Members that:

(A) challenges Developer’s authority to execute, deliver or perform any DeveloperAgreement;

(B) challenges the validity or enforceability of any Developer Agreement;

(C) challenges the authority of any Developer representative executing anyDeveloper Agreement; and/or

(D) could have a material and adverse effect on the ability of Developer to perform itsobligations under any Developer Agreement and/or on the ability of eitherEnterprise to exercise any of its rights under any Developer Agreement to whichit is a party;

(ii) un-served or threatened action, suit, proceeding, investigation or litigation with respect toany of the matters referred to in Sections (k)(i)(A) to (D) of this Part A of which Developeris aware; and

(iii) current, pending or outstanding criminal, civil, or enforcement action initiated by theEnterprises, CDOT, the State or any other Governmental Authority against Developer,and Developer agrees that it will immediately notify the Enterprises of any such actions.

(l) Prohibited Acts. Developer has not, and, to the best of Developer’s knowledge and belief(Developer having made reasonable enquiries with a view to obtaining such knowledge andbelief) no Developer-Related Entity has, committed any Prohibited Act.

(m) Organizational Conflicts of Interest. As of the date of the [Preferred Proposer’s FinancialProposal Submission], the Preferred Proposer disclosed to the Enterprises in writing allOrganizational Conflicts of Interest of which Preferred Proposer was aware and, since such date,



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Developer has not obtained knowledge (Developer having made reasonable inquiries with a viewto obtaining such knowledge) of any additional Organizational Conflict of Interest, and there havebeen no Organizational Changes or Key Personnel Changes (as such terms are defined in theITP) to or by Developer or its Principal Subcontractors identified in its Proposal which requireapproval by the Enterprises pursuant to the terms of the ITP and have not been so approved.

(n) Debarment. None of Developer, any of its principals or any of its Principal Subcontractors arepresently disqualified, suspended or debarred from bidding, proposing or contracting with anystate-level, interstate or Federal Governmental Authority. For purposes of this representation andwarranty, the term “principal” means an officer, director, Equity Member or other direct or indirectowner, partner, Key Personnel, employee or other person with primary management orsupervisory responsibilities, or a person who has a critical influence on or substantive control overthe operations of Developer.

(o) Taxes and Fees. Neither Developer nor any of its Equity Members2

is presently in arrears inpayment of Taxes, Permit fees or other statutory, regulatory or judicially required payments to anyGovernmental Authority.

(p) Principal Subcontractors. As of the effective date of the relevant Principal Subcontract:

(i) each of the Construction Contractor [and the O&M Contractor]3

(and, if the ConstructionContractor [or the O&M Contractor] is a joint venture, each member thereof) (each suchPrincipal Subcontractor and each such member, a “Relevant Entity”) is duly organized,validly existing and, where legally applicable, in good standing under the laws of the stateof its organization;

(ii) each Relevant Entity has the power and authority to do all acts and things and executeand deliver all other documents as are required to be done, observed or performed by itin connection with its engagement by Developer;

(iii) each Relevant Entity has:

(A) obtained or will obtain and will maintain all necessary or required registrations,permits, licenses and approvals required under applicable Law; and

(B) expertise, qualifications, experience, competence, skills and know-how toperform the Construction Work and O&M Work as applicable, in accordance withthis Agreement;

(iv) each Relevant Entity will comply with all health, safety and environmental Laws in theperformance of any work activities for, or on behalf of, Developer;

(v) none of the Relevant Entities is in breach of any applicable Law that would have amaterial adverse effect on the Construction Work and/or the O&M Work, as applicable;and

(vi) each Principal Subcontract, and any amendments or supplements thereto, is incompliance with, and, as applicable, incorporates the terms set out in, Part A ofSchedule 16 to the Project Agreement.

2 Note to Proposers: Subject to adjustment to account for the Preferred Proposer’s equity structure (e.g., the use of a HoldCo).3 Note to Proposers: To be deleted if Developer is to self-perform O&M Work.



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Part B: Representations and Warranties of the Colorado Bridge Enterprise4

(a) Power and Authority. BE is a government-owned business within CDOT and BE has or (withrespect to those BE Agreements to which HPTE is also a party) the Enterprises have the legalpower, right and authority to execute, deliver and perform the Project Agreement, the EnterpriseClosing Agreements to which BE is a party and the IAA (collectively, the “BE Agreements”),subject to the terms and conditions of each BE Agreement.


(i) Each person executing any BE Agreement on behalf of BE has been (or, at the time ofexecution, will have been) duly authorized to execute and deliver such BE Agreement onbehalf of BE.

(ii) The execution, delivery and performance of each BE Agreement has otherwise been dulyauthorized by BE.

(iii) Each BE Agreement has been (or will be) duly and validly executed and delivered by BE.

(c) Enforceability. Each BE Agreement constitutes (or at the time of execution and delivery willconstitute) a legal, valid and binding obligation of BE or (with respect to those BE Agreements towhich HPTE is also a party) of the Enterprises enforceable against it or them, respectively, inaccordance with its terms, except to the extent limited by applicable bankruptcy, insolvency,reorganization, moratorium or other similar laws affecting the enforceability of the rights ofcreditors generally, by general principles of equity, by the exercise by the State and itsgovernmental bodies of the police power inherent in the sovereignty of the State and by theexercise by the United States of the powers delegated to it by the Constitution of the UnitedStates.

(d) No Conflicts. The execution and delivery by BE of the BE Agreements has not resulted in, andthe performance thereof by BE will not result in:

(i) a default under or a violation of any agreement, judgment or decree to which BE is aparty or is bound; or

(ii) a violation of any Law applicable to BE that is in effect on the date of execution anddelivery of each BE Agreement.

(e) Consents and Approvals. As of the date on which this representation and warranty is given orrepeated, no consent of any party and no Governmental Approval which has not already beenobtained is required, as of such date, to have been obtained in connection with the execution,delivery and performance of any BE Agreement by BE.

(f) Enterprise Default. No Enterprise Default has occurred and is continuing, and no fact or eventexists that with the passage of time or giving of notice would constitute an Enterprise Default.

(g) Applicable Laws. BE is not in breach of any Law that would have a material adverse effect onthe performance of any of its obligations under any BE Agreement.

(h) Legal Proceedings. Except as disclosed in writing by the Enterprises to Developer, no action,suit, proceeding, investigation or litigation is pending or overtly threatened in writing thatchallenges:

(i) BE’s authority to execute, deliver or perform;

(ii) the legality, validity or enforceability of, as against BE; or

(iii) the authority of any representative of BE executing,

in the case of (i), (ii) and (iii), any of the BE Documents.

4 Note for Proposers: Parts B and C of this Schedule remain under internal review by the Enterprises and therefore are subject toamendment.



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(i) Eligible Project Costs.

(i) To the best of BE’s knowledge, the total federal assistance received and/or allocatedand/or to be received and/or allocated by or to the Enterprises for the construction costsof the Project (specifically excluding costs for O&M Work) does not exceed 80% of“eligible project costs”, as those costs are defined by any federal loan or grant agreementto which BE is a party or of which BE has actual knowledge.

(ii) The Enterprises have submitted to TIFIA JPO information regarding all “eligible projectcosts” incurred to date by the Enterprises.



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Part C: Representations and Warranties of the High Performance Transportation Enterprise

(a) Power and Authority. HPTE is a government-owned business within CDOT and HPTE has or(with respect to those HPTE Agreements to which BE is also a party) the Enterprises have thelegal power, right and authority to execute, deliver and perform the Project Agreement, theEnterprise Closing Agreements to which HPTE is a party and the IAA (collectively the “HPTEAgreements”), subject to the terms and conditions of each HPTE Agreement.


(i) Each person executing any HPTE Agreement on behalf of HPTE has been (or, at thetime of execution, will have been) duly authorized to execute and deliver such HPTEAgreement on behalf of HPTE.

(ii) The execution, delivery and performance of each HPTE Agreement has otherwise beenduly authorized by HPTE.

(iii) Each HPTE Agreement has been (or will be) duly and validly executed and delivered byHPTE.

(c) Enforceability. Each HPTE Agreement constitutes (or at the time of execution and delivery willconstitute) a legal, valid and binding obligation of HPTE or (with respect to those BE Agreementsto which BE is also a party) of the Enterprises, enforceable against it or them, respectively, inaccordance with its terms, except to the extent limited by applicable bankruptcy, insolvency,reorganization, moratorium or other similar laws affecting the enforceability of the rights ofcreditors generally, by general principles of equity, by the exercise by the State and itsgovernmental bodies of the police power inherent in the sovereignty of the State and by theexercise by the United States of the powers delegated to it by the Constitution of the UnitedStates.

(d) No Conflicts. The execution and delivery by the HPTE of the HPTE Agreements has notresulted in, and the performance thereof by HPTE will not result in:

(i) a default under or a violation of any agreement, judgment or decree to which HPTE is aparty or is bound; or

(ii) a violation of any Law applicable to HPTE that is in effect on the date of execution anddelivery of each HPTE Agreement.

(e) Consents and Approvals. As of the date on which this representation and warranty is given orrepeated, no consent of any party and no Governmental Approval which has not already beenobtained is required, as of such date, to have been obtained in connection with the execution,delivery and performance of any HPTE Agreement by HPTE.

(f) Enterprise Default. No Enterprise Default has occurred and is continuing, and no fact or eventexists that with the passage of time or giving of notice would constitute an Enterprise Default.

(g) Applicable Laws. HPTE is not in breach of any Law that would have a material adverse effecton the performance of any of its obligations under any HPTE Agreement.

(h) Legal Proceedings. Except as disclosed in writing by the Enterprises to Developer, no action,suit, proceeding, investigation or litigation is pending or overtly threatened in writing thatchallenges:

(i) HPTE’s authority to execute, deliver or perform;

(ii) the legality, validity or enforceability of, as against HPTE; or

(iii) the authority of any representative of HPTE executing,

in the case of (i), (ii) and (iii), any of the HPTE Documents.



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(i) Eligible Project Costs.

(i) To the best of HPTE’s knowledge, the total federal assistance received and/or allocatedand/or to be received and/or allocated by or to the Enterprises for the construction costsof the Project (specifically excluding costs for O&M Work) does not exceed 80% of“eligible project costs”, as those costs are defined by any federal loan or grant agreementto which HPTE is a party or of which HPTE has actual knowledge.

(ii) The Enterprises have submitted to TIFIA JPO information regarding all “eligible projectcosts” incurred to date by the Enterprises.

Central 70 Project: Project AgreementSchedule 19 (Forms of Direct Agreements)


Schedule 19-1

Schedule 19

Forms of Direct Agreements

Part A: Form of Lenders Direct Agreement

This Direct Agreement (this “Agreement”) is dated as of [ ] and made among:

(1) Colorado High Performance Transportation Enterprise (“HPTE”), a government-owned businesswithin, and a division of, the Colorado Department of Transportation (“CDOT”);

(2) Colorado Bridge Enterprise, a government-owned business within CDOT (“BE” and, together withHPTE, each individually an “Enterprise” and, together, the “Enterprises”);

(3) [ ], a [describe type of legal entity and reference state of incorporation/organization] (“Developer”);and

(4) [ ] as collateral agent (the “Collateral Agent”) for the benefit of the Lenders (as defined below).

RECITALS

Whereas:

(A) The Enterprises and Developer have entered into a Project Agreement for the Central 70 Projectdated as of [ ] (as the same may be amended, modified or supplemented from time to time inaccordance with its terms, the “Project Agreement”), in connection with the design, construction,financing, operation and maintenance of a portion of the I-70 East corridor in Greater Denver (the“Project”) as more fully described in the Project Agreement.

(B) Pursuant to the Financing Documents listed in Annex A, the Collateral Agent is the agent for thevarious providers of Project Debt to Developer (collectively, the “Lenders”), the proceeds of whichwill be used by Developer to finance the Project.

(C) It is a condition precedent to both Financial Close under Schedule 1 (Financial Close) to theProject Agreement and to closing and funding of the Project Debt under the FinancingDocuments that the parties hereto execute this Agreement.

Now, therefore, in consideration of their mutual undertakings and agreements hereunder, and for othergood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, theparties undertake and agree as follows:

1. DEFINITIONS, INTERPRETATION AND RELATIONSHIP TO PROJECT AGREEMENT

1.1 Definitions

(a) Capitalized terms used but not defined in this Agreement shall have the meanings givento them in Part A of Annex A (Definitions and Abbreviations) of the Project Agreement.For certainty, uncapitalized terms used but not defined in this Agreement shall, subject toSection 1.2, be construed in accordance with their plain meaning and shall not have themeanings (if any) given to them in Part A of Annex A (Definitions and Abbreviations) ofthe Project Agreement.

(b) Except as otherwise specified herein, or as the context may otherwise require, thefollowing terms have the respective meanings set out below for all purposes of thisAgreement:

“Collateral Agent” has the meaning given to it in the Preamble.

“Collateral AgentNotice”

has the meaning given to it in Section 3.2(a).



Schedule 19-2

“Cure Period” means, with respect to any Developer Default, the periodcommencing on the Enterprise Notice Date and ending on theearliest of:

(a) the relevant Cure Period Completion Date;

(b) any subsequent Step-out Date;

(c) any subsequent Substitution Effective Date; and

(d) the Expiry Date or the Termination Date, as applicable.

“Cure PeriodCompletion Date”

means, with respect to any Developer Default, the date which is:

(a) in the case of each of the Developer Defaults numbered(9)

1and (17) in Section 32.1.1 of the Project Agreement,

60 Calendar Days after the relevant Cure PeriodMeasurement Date;

(b) in the case of each of the Developer Defaults numbered(1), (2), (3) and (26) in Section 32.1.1 of the ProjectAgreement, 120 Calendar Days after the relevant CurePeriod Measurement Date; and

(c) in the case of any other Developer Default, 90 CalendarDays after the relevant Cure Period Measurement Date,subject to extension for up to (1) an additional 180Calendar Days, in the case of the Developer Defaultnumbered (5) in Section 32.1.1 of the ProjectAgreement, or (2) an additional 90 Calendar Days, inthe case of all other such Developer Defaults, in thecase of each of (1) and (2) to the extent, and only to theextent, that:

(i) within such initial 90 Calendar Day period, theCollateral Agent and the Enterprises agree(each acting reasonably) to a plan specifyingthe remedial action to be taken in respect of therelevant Developer Default during suchextended period; and

(ii) the period of extension requested by theCollateral Agent represents, in the reasonableopinion of the Enterprises, the period of timenecessary to cure the relevant DeveloperDefault in accordance with such plan,

provided that, notwithstanding the foregoing, if:

(d) the Collateral Agent is prohibited by any GovernmentalAuthority or court order, or by any bankruptcy orinsolvency proceedings or other similar proceedings,from curing the relevant Developer Default; or

1Note to Proposers: Developer Default number (9) will be revised in a future Addendum to read: “AnyDeveloper-Related Entity commits a Prohibited Act and such entity is: (a) Developer; or (b) any other Developer-Related Entity: (i) acting in concert with Developer; or (ii) acting independently of Developer, but with Developer’sprior knowledge, unless (with respect to (ii)) Developer promptly notifies the Enterprises and, as required by Law,any other relevant Governmental Authorities, of such Prohibited Act (in which case Developer Default numbered(22) in Section 32.1.1 shall apply with respect to such Prohibited Act).” Conforming revisions will also be madeto Developer Default number (22).



Schedule 19-3

(e) the Collateral Agent has commenced and is continuingto pursue all reasonably necessary processes and stepsto obtain possession, custody and control of the Projectand/or Developer, but despite such efforts the CollateralAgent is unable to obtain such possession, custody andcontrol,

then the Cure Period Completion Date applicable to the relevantDeveloper Default (including, for certainty, as extended inaccordance with paragraph (c) of this definition) shall beextended by a period of time equal to:

(f) in the case of paragraph (d), the period of suchprohibition or inability, provided that, if the relevantbankruptcy or insolvency proceedings or other similarproceedings were commenced by the Collateral Agentacting on behalf of the Lenders, such period shallinstead be the shorter of the period of:

(i) such prohibition or inability; and

(ii) 270 Calendar Days; and

(g) in the case of paragraph (e), the shorter of the period of:

(i) such prohibition or inability; and

(ii) 180 Calendar Days.

“Cure PeriodMeasurement Date”

means, with respect to any Developer Default, the later of:

(a) the Enterprise Notice Date; and

(b) the date of expiration of the relevant Developer DefaultCure Period pursuant to Sections 32.1.1 and 32.1.2 ofthe Project Agreement.

“Default” any event or circumstance that would (with the expiration of agrace period, the giving of notice, the lapse of time, the makingof any determination or any combination of any of the foregoing)result in an Event of Default.

“Designated Account” means [ ].2

“Developer” has the meaning given to it in the Preamble.

“Enterprises” has the meaning given to it in the Preamble.

“Enterprise Notice” has the meaning given to it in Section 3.1(a).

“Enterprise NoticeDate”

means the date on which the Collateral Agent receives theEnterprise Notice with respect to a Developer Default asdetermined pursuant to Section 15.5(b).

“Event of Default” means any “Event of Default” as defined in the FinancingDocuments.

3

“Lenders” has the meaning given to it in the Recitals.

2See Section 2.3 below. Revise to reflect Developer’s financing plan and Lenders’ secured account requirements.

3Modify as needed to conform to the Financing Documents.



Schedule 19-4

“Lenders’ SubcontractDirect Agreements”

means [ ].4

“Private SectorParties”

means Developer and the Collateral Agent.

“Project Agreement” has the meaning given to it in the Recitals.

“Step-in Date” has the meaning given to it in Section 5.3.

“Step-in Entity” has the meaning given to it in Section 5.1.

“Step-in EntityAccession Agreement”

means any agreement entered into by a Step-in Entity pursuantto Section 5.3.

“Step-in Notice” has the meaning given to it in Section 5.1(a).

“Step-in Period” means any period from and including the relevant Step-in Dateuntil the earliest of:

(a) the Cure Period Completion Date with respect to therelevant Developer Default;

(b) any subsequent Substitution Effective Date;

(c) the relevant Step-out Date; and

(d) the Expiry Date or the Termination Date, as applicable.

“Step-out Date” means the date upon which any Step-out Notice is served by aStep-in Entity pursuant to Section 5.5(a).

“Step-out Notice” has the meaning given to it in Section 5.5(a).

“Substitute” has the meaning given to it in Section 6.1.

“Substitute AccessionAgreement”

means any agreement entered into by a Substitute pursuant toSection 7.1.

“Substitution EffectiveDate”

has the meaning given to it in Section 7.1.

“Substitution Notice” has the meaning given to it in Section 6.1(a).

1.2 Interpretation

(a) Headings and other internal references

Headings are inserted for convenience only and shall not affect interpretation of(i)this Agreement.

Except as the context may otherwise provide, the words “herein”, “hereof” and(ii)“hereunder”, and words of similar import, shall be construed to refer to thisAgreement in its entirety and not to any particular provision of it.

Except as otherwise expressly provided or as the context may otherwise provide,(iii)a reference to any Section or Annex within this Agreement is a reference to suchSection of, or Annex to, this Agreement.

(b) Common terms and references

The singular includes the plural and vice versa.(i)

4Define by reference to the relevant direct agreements listed in Annex A.



Schedule 19-5

Words preceding “include”, “includes”, “including” and “included” shall be(ii)construed without limitation by the words that follow.

The word “promptly” means as soon as reasonably practicable in light of(iii)then-prevailing circumstances.

(c) References to agreements, documents and Persons

Except as otherwise expressly provided in this Agreement, a reference:

to an agreement or other document shall be construed to be a reference to such(i)agreement or other document (including any schedules, annexes or exhibitsthereto) as it may be amended, modified or supplemented from time to time inaccordance with its terms and the terms of the Project Agreement and of theFinancing Documents, as applicable; and

to a Person includes such Person’s successors and permitted assigns and(ii)transferees.

(d) Deadlines occurring on Calendar Days

Whenever this Agreement requires the Enterprises to make any payment, or provide ordeliver any Acceptance, Approval, consent, approval or like assent, notice, comment orany information or material, or otherwise complete any action or performance, in eachcase on or no later than a date that is a Calendar Day that is not also a Working Day,then such deadline shall automatically be extended to the next Working Day to occurafter such Calendar Day.

1.3 Relationship to Project Agreement

(a) In the event of any conflict, ambiguity or inconsistency between the provisions of theProject Agreement and the provisions of this Agreement, the provisions of thisAgreement shall prevail.

(b) Notwithstanding the foregoing Section 1.3(a), nothing in this Agreement amends ormodifies any of Developer’s obligations under the Project Agreement.

2. CONSENT TO SECURITY; ETC.

2.1 Enterprises’ Acknowledgement of and Consent to Security

(a) The Enterprises acknowledge notice and receipt of, and consent to:

the collateral assignment by Developer to the Collateral Agent of any or all of(i)Developer’s rights, title, interests in, to or under or derived from, and obligationsunder, the Project Agreement, the Subcontracts, the Contractor Bonds (to theextent Developer is an obligee (or beneficiary) thereunder) and the InsurancePolicies, in each case pursuant to the Financing Documents; and

the grant by each of the Equity Members to the Collateral Agent of a security(ii)interest in its respective equity interest in Developer, in each case pursuant to theFinancing Documents.

(b) The Enterprises acknowledge and agree that none of the security interests referred to inSection 2.1(a) nor the foreclosure or enforcement of any thereof:

constitutes (or with the giving of notice or lapse of time, or both, could constitute)(i)either a breach of the Project Agreement or a Developer Default; or

requires any consent of the Enterprises that is either additional or supplemental(ii)to that granted pursuant to this Section 2.1.

(c) For so long as any amount of Project Debt is outstanding, the Enterprises shall not,without the prior written consent of the Collateral Agent, consent to any assignment,



Schedule 19-6

transfer, pledge or hypothecation of the Project Agreement or any interest therein byDeveloper, other than as specified in this Agreement.

2.2 Payments to Designated Account

(a) Unless directed otherwise by the Collateral Agent, the Enterprises shall pay all amountspayable by them to Developer under the Project Agreement into the Designated Account.

(b) Developer and the Collateral Agent both agree that any payment made by theEnterprises in accordance with Section 2.2(a) shall constitute a complete discharge of theEnterprises’ relevant payment obligations under the Project Agreement.

2.3 Limitations on Collateral Agent’s Rights and Interests

(a) The Collateral Agent acknowledges and agrees that neither it nor the Lenders shall, byvirtue of the security interests referred to in Section 2.1(a), acquire any greater rights toor under the Project Agreement, the Subcontracts, the Contractor Bonds (to the extentDeveloper is an obligee (or beneficiary) thereunder) or Insurance Policies than Developeritself has at any particular time therein.

(b) In the event that there are payment obligations owing to any of the Developer's orPrincipal Subcontractor's, as the case may be, direct or indirect Subcontractors andlaborers on account of any unpaid charges, liens, supplies, claims or invoices for workperformed or materials supplied by such Subcontractors and laborers to the Project, then:

the Enterprises; or(i)

the Collateral Agent (other than during a Cure Period or a Step-in Period, with(ii)the prior written consent of Enterprises (such consent not to be unreasonablywithheld, conditioned or delayed)),

shall each be entitled to call upon any Contractor Bond5

to satisfy any such paymentobligations; provided that, during a Cure Period or a Step-in Period, the Enterprises shallonly be entitled to take such action if (A) the relevant Person has filed a verifiedstatement of the amounts owing and unpaid with the Enterprises in accordance withC.R.S. § 38-26-107 and (B) the Collateral Agent has not called upon such ContractorBond to satisfy such payment obligations and the Collateral Agent does not call uponsuch Contractor Bond within 15 Working Days after written notice from the Enterprises ofthe Enterprises’ intent to take such action. Neither the Collateral Agent nor theEnterprises shall be entitled to call on such Contractor Bond or to use any proceeds ofany call on any such Contractor Bond to satisfy performance obligations of Developer orany Principal Subcontractor (as applicable) under the Project Agreement or relevantPrincipal Subcontract (as applicable) until any such outstanding payment obligationshave been fully satisfied.

2.4 Collateral Agent Response to Project Agreement Amendment and Waiver Requests

To the extent that any Developer consent to the amendment to, or any waiver of the requirementsof any provision of, the Project Agreement requires the Lenders’ and/or the Collateral Agent’sconsent pursuant to the Financing Documents, the Collateral Agent agrees that in response toany written request from Developer for such a consent it shall:

(a) promptly seek instructions from the Lenders in accordance with the FinancingDocuments; and

5The draft Project Agreement contemplates a single form of Contractor Bond. The Preferred Proposer may electto provide two bonds (one for payment, and one for performance) each in an amount equal to the required valueof the Contractor Bond in lieu of the single form of Contractor Bond and otherwise in a form accepted by theEnterprises. This provision (and other relevant provisions) would therefore be modified as needed prior toexecution to reflect the use of separate bonds. Note to Proposers: This accommodation will also be reflected inthe Project Agreement in a future Addendum.



Schedule 19-7

(b) once instructed, promptly respond in writing to any such request.

2.5 Agreement to Act Reasonably

The Collateral Agent acknowledges and agrees that it shall act reasonably in responding to anyDeveloper request to the Collateral Agent made under the Financing Documents to take anyaction, including the giving or withholding of any consent, approval or like assent, under theProject Agreement to the extent that Developer is required to act reasonably under suchcircumstances by the terms of the Project Agreement.

3. NOTICES

3.1 Enterprise Notices

(a) The Enterprises shall give the Collateral Agent notice (any such notice, an “EnterpriseNotice”) promptly upon becoming aware of the occurrence of any Developer Default, andshall specify in the Enterprise Notice:

the unperformed obligations of, and uncured breaches by, Developer under the(i)Project Agreement of which the Enterprises are aware (having made reasonableinquiry) and the resulting potential grounds for termination of the ProjectAgreement in sufficient detail to enable the Collateral Agent to assess the scopeand amount of any liability of Developer resulting therefrom;

all amounts due and payable by Developer to the Enterprises under the Project(ii)Agreement, if any, on or before the date of the Enterprise Notice and whichremain unpaid at such date and the nature of Developer’s obligation to pay suchamounts; and

the amount of any payments that the Enterprises reasonably foresee shall(iii)become due and payable from Developer to the Enterprises under the ProjectAgreement during the relevant Cure Period.

(b) The Enterprises:

may give the Collateral Agent multiple concurrently effective Enterprise Notices;(i)and

shall provide updates to any Enterprise Notice given pursuant to Section 3.1(a)(ii)as and when they become aware of any unperformed obligations of, or anyuncured breaches by, Developer (including non-payment of amounts that havebecome due) under the Project Agreement of the kind referenced inSections 3.1(a)(i) and 3.1(a)(ii) that were not specified in the relevant EnterpriseNotice or any prior updates thereto.

3.2 Collateral Agent Notices

The Collateral Agent shall:

(a) promptly upon becoming aware of any Event of Default, give the Enterprises notice ofsuch event (a “Collateral Agent Notice”) specifying the circumstances and nature of suchevent; and

(b) notify the Enterprises of any decision to accelerate any portion of the Project Debt or toexercise any enforcement remedies under the Financing Documents promptly upon thetaking of such decision.



Schedule 19-8

4. RIGHTS AND OBLIGATIONS DURING THE CURE PERIOD

4.1 No Termination during the Cure Period

At any time during a Cure Period, the Enterprises shall not, subject to the terms of thisAgreement:

(a) deliver a Termination Notice for Developer Default;

(b) directly or indirectly, take any action to initiate, or join in or support the initiation of, anyInsolvency Event in respect of Developer, provided that, for certainty, if any InsolvencyEvent has occurred with respect to Developer (other than as a result of the Enterprises’breach of this Section 4.1(b)), this Section 4.1(b) shall not restrict or impair the ability ofthe Enterprises to participate in any related proceedings in order to preserve or protecttheir rights under the Project Agreement and/or their interests in the Project;

(c) suspend their performance under the Project Agreement, (including in connection withany Insolvency Event in respect of Developer) unless the grounds for suspension ofperformance arose during the Cure Period, provided that, for certainty, the Enterprisesmay exercise their rights to suspend the Work pursuant to Section 23.3 of the ProjectAgreement;

(d) notwithstanding anything to the contrary in Section 9.3.4 of the Project Agreement, butsubject to Section 2.3(b) of this Agreement, exercise its remedies as obligee or additionalobligee (or beneficiary) under a Contractor Bond; or

(e) fail to pay any amount that becomes due and payable from them to Developer under theProject Agreement during such period into the Designated Account in accordance withSection 2.2(a).

4.2 Collateral Agent Rights

(a) At any time during the continuation of an Event of Default or a Developer Default (in thecase of a Developer Default only, for so long as the Cure Period has not expired), withoutgiving a Step-in Notice, the Collateral Agent may (but shall have no obligation to), at anytime and at its discretion, perform or arrange for the performance of any act, duty orobligation required of Developer under the Project Agreement, or cure any breach ofDeveloper thereunder or any Developer Default, which performance or cure by or onbehalf of the Collateral Agent the Enterprises agree to accept in lieu of performance orcure by Developer and in satisfaction of Developer’s corresponding obligations. Forcertainty, to the extent that any breach of Developer under the Project Agreement iscured and/or any payment liabilities or obligations of Developer are performed by theCollateral Agent under this Section 4.2(a), such action shall discharge the relevantliabilities or obligations of Developer to the Enterprises.

(b) Subject to the terms of this Agreement, no performance or cure by or on behalf of theCollateral Agent in accordance with Section 4.2(a) shall be construed as an assumptionby the Collateral Agent, or any person acting on the Collateral Agent’s behalf, of any ofthe covenants, agreements or other obligations of Developer under the ProjectAgreement.

(c) The Collateral Agent may:

give a Step-in Notice in accordance with the requirements of Section 5.1; or(i)

give a Substitution Notice in accordance with the requirements of Section 6.1;(ii)

provided that the Collateral Agent delivers any such notice:

during a Cure Period; or(iii)



Schedule 19-9

following the occurrence of an ongoing Event of Default that is not also a(iv)Developer Default.

5. STEP-IN ARRANGEMENTS

5.1 Step-in Notice

If at any time the Collateral Agent proposes that any Person become a joint and several obligorwith Developer under the Project Agreement and this Agreement in accordance with the termshereof (any such Person, a “Step-in Entity”), the effectiveness of such arrangement shall beconditional upon:

(a) the Collateral Agent giving a notice (“Step-in Notice”) to the Enterprises, at any time thatsuch notice delivery is permitted pursuant to Section 4.2(c), requesting the Enterprises’consent to the proposed Step-in Entity;

(b) the Enterprises’ approval (or deemed approval) of the identity of the proposed Step-inEntity pursuant to Section 5.2; and

(c) the proposed Step-in Entity executing a Step-in Entity Accession Agreement inaccordance with Section 5.3.

5.2 Grounds for Refusing Approval of Proposed Step-in Entity

(a) The Enterprises shall not be entitled to withhold their approval of any proposed Step-inEntity that is the subject of a Step-in Notice unless:

the proposed Step-in Entity is disqualified, suspended or debarred, or subject to(i)a proceeding to suspend or debar it, from bidding, proposing or contracting withany state-level, interstate or Federal Governmental Authority;

the proposed step-in is prohibited by statute, law or regulation; or(ii)

there is any outstanding Developer Default numbered (17) in Section 32.1.1 that(iii)has not been remedied or waived on or prior to the date of the Step-in Notice.

(b) The Enterprises shall be deemed to have approved any proposed Step-in Entity that isthe subject of a Step-in Notice:

in the case of any entity that is the Collateral Agent, a Lender or any of their(i)respective Affiliates (including an entity wholly owned by a Lender or group ofLenders), on the fifth Working Day after the date on which the Enterprisesreceive the relevant Step-in Notice if the Enterprises have not responded to suchnotice within such period of time; and

in all other cases, on the 15th

Working Day after the date on which the(ii)Enterprises receive the relevant Step-in Notice if the Enterprises have notresponded to such notice within such period of time.

5.3 Step-in Date

If the Enterprises approve (or, pursuant to Section 5.2(b), are deemed to approve) a Step-inEntity pursuant to Section 5.2, the Step-in Entity shall be deemed to become a party to theProject Agreement and this Agreement on and from the date it executes a duly completed Step-inEntity Accession Agreement, substantially in the form attached hereto as Exhibit A, and submits itto Enterprises (the “Step-in Date”).

5.4 Rights and Obligations on Step-in

(a) On and from the Step-in Date and during the Step-in Period, the Step-in Entity shall be:

jointly and severally entitled to exercise and enjoy the rights and powers(i)expressed to be assumed by or granted to Developer under the ProjectAgreement;



Schedule 19-10

entitled to exercise and enjoy the rights and powers expressed to be assumed by(ii)or granted to a Step-in Entity under this Agreement; and

jointly and severally liable with Developer for the payment of all sums due from(iii)Developer under or arising out of the Project Agreement on or after the Step-inDate and for the performance of all of Developer’s obligations (including paymentobligations) under or arising out of the Project Agreement on or after the Step-inDate.

(b) Without prejudice to Section 8, during the Step-in Period:

the Enterprises undertake:(i)

(A) not to deliver a Termination Notice for Developer Default, unless thegrounds for the termination arose during the Step-in Period as a result ofthe occurrence of a new Developer Default (subject to the expiry of theCure Period applicable to such new Developer Default without suchDeveloper Default having been cured);

(B) not to, directly or indirectly, take any action to initiate, or join in or supportthe initiation of, any Insolvency Event in respect of Developer, providedthat, for certainty, if any Insolvency Event has occurred with respect toDeveloper (other than as a result of the Enterprises’ breach of thisSection 5.4(b)(i)(B)), this Section 5.4(b)(i)(B) shall not restrict or impairthe ability of the Enterprises to participate in any related proceedings inorder to preserve or protect their rights under the Project Agreementand/or their interests in the Project;

(C) not to suspend their performance under the Project Agreement,(including in connection with any Insolvency Event in respect ofDeveloper) unless the grounds for suspension of performance aroseduring the Step-in Period, provided that, for certainty, the Enterprisesmay exercise their rights to suspend the Work pursuant to Section 23.3of the Project Agreement;

(D) notwithstanding anything to the contrary in Section 9.3.4 of the ProjectAgreement, but subject to Section 2.3(b) of this Agreement, not toexercise its remedies as obligee or additional obligee (or beneficiary)under a Contractor Bond; and

(E) to continue to make payments required to be made to Developer underthe Project Agreement to the Designated Account;

the Enterprises shall owe their obligations under the Project Agreement to(ii)Developer and any Step-in Entity jointly, provided, that:

(A) subject to Section 5.4(b)(ii)(B), the performance of such obligations bythe Enterprises in favor of either Developer or such Step-in Entity shallbe a good and effective discharge of such obligations under the ProjectAgreement or this Agreement, as the case may be; and

(B) the Collateral Agent shall be entitled at any time by notice to theEnterprises to direct (such direction being binding on the CollateralAgent, the Enterprises and Developer) that, at all times thereafter whilesuch Step-in Entity is deemed to be a party to the Project Agreement andthis Agreement and subject to any further notice from the CollateralAgent, such Step-in Entity shall be solely entitled to make any decisions,to give any directions, approvals or consents, to receive any payments orotherwise to deal with the Enterprises in the place of Developer underthe Project Agreement and this Agreement.



Schedule 19-11

(c) Developer shall not be relieved from any of its obligations under the Project Agreement,whether arising before or after the Step-in Date, by reason of the Step-in Entity becominga party to the Project Agreement pursuant to a Step-in Entity Accession Agreement.

5.5 Step Out

(a) A Step-in Entity may, at any time, by giving not less than 30 Calendar Days’ prior notice(“Step-out Notice”) to the Enterprises, terminate its obligations to the Enterprises underthe Project Agreement and this Agreement. Upon the expiry of such notice, the Step-inEntity shall no longer be deemed to be a party to the Project Agreement and thisAgreement and shall (subject to Section 5.5(b)) be released from all such obligations.The obligations of the Enterprises to the Step-in Entity in such capacity under the ProjectAgreement and this Agreement shall also terminate upon the expiry of such notice.

(b) Nothing in this Section 5.5 shall have the effect of releasing a Step-in Entity from anyliability that relates to the performance or non-performance of the Project Agreement orthis Agreement by Developer or such Step-in Entity during the Step-in Period.

6. SUBSTITUTION PROPOSALS

6.1 Notice of Proposed Substitute

If at any time the Collateral Agent proposes to require Developer to assign its rights and transferits obligations under the Project Agreement and this Agreement to a Person (a “Substitute”)designated by the Collateral Agent (whether by mutual agreement or enforcement of rights underthe Financing Documents), the effectiveness of such assignment and transfer shall be conditionalupon:

(a) the Collateral Agent giving a notice (a “Substitution Notice”) to the Enterprises, at anytime that such notice delivery is permitted pursuant to Section 4.2(c), requesting theirapproval of the proposed Substitute;

(b) the Enterprises’ approval of the identity of the proposed Substitute pursuant toSection 6.2 to the extent required thereunder; and

(c) the proposed Substitute executing a Substitute Accession Agreement in accordance withSection 7.1.

6.2 Grounds for Refusing Approval

(a) The Enterprises shall not be entitled to withhold, or (where the Enterprises are otherwiseentitled to withhold approval) make subject to the condition of the provision of additionalsecurity or other arrangements, their approval of any proposed Substitute that is thesubject of a Substitution Notice, unless:

the proposed Substitute is disqualified, suspended or debarred, or subject to a(i)proceeding to suspend or debar it, from bidding, proposing or contracting withany state-level, interstate or Federal Governmental Authority;

the proposed substitution is prohibited by statute, law or regulation;(ii)

after the proposed substitution, the Substitute’s ability to perform its obligations(iii)as Developer under the Project Agreement would be insufficient to ensureperformance of such obligations under the Project Agreement, a determinationas to which the Enterprises may base upon or take into account (A) the legalcapacity, power and authority of the Substitute to become a party to, and performthe obligations of Developer under the Project Agreement and/or (B) theresources (including committed financial resources), past performance, relevantexperience and proposed subcontracting arrangements of the proposedSubstitute and, if applicable, of its proposed Subcontractors, in light of the thencurrent performance requirements under the Project Agreement; or



Schedule 19-12

subject to Section 7.4, there are outstanding Developer Defaults or breaches of(iv)the Project Agreement that have been previously notified by the Enterprises tothe Collateral Agent, that either:

(A) have not, to the reasonable satisfaction of the Enterprises, beenremedied or waived prior to the 30

thCalendar Day after the date on

which the Enterprises receive the information required pursuant toSection 6.3; or

(B) if not so remedied or waived, are not the subject of a plan approved bythe Enterprises (such approval not to be unreasonably withheld,conditioned or delayed) specifying:

(I) subject to Section 6.2(a)(iv)(B)(II), the remedial action that theSubstitute shall take after the Substitution Effective Date in orderto remedy each such Developer Default or breach; and

(II) with respect to any such Developer Default or breach that isincapable of being cured by the proposed Substitute, the actionthe Substitute shall take after the Substitution Effective Date inorder to mitigate the material adverse effects (if any) of suchDeveloper Default or breach on or in relation to the Project andto prevent such Developer Default or breach (if capable ofrepetition) from occurring in the future.

(b) The Enterprises shall be deemed to have approved any proposed Substitute that is thesubject of a Substitution Notice on the 30

thCalendar Day after the date on which the

Enterprises receive the information required pursuant to Section 6.3 if the Enterpriseshave not responded to such notice within such period of time.

6.3 Provision of Information

The Collateral Agent shall promptly provide to the Enterprises such information in relation to (i) aproposed Substitute and (ii) any Person who it is proposed shall enter into a material Subcontractwith the proposed Substitute in relation to the Project, as the Enterprises shall reasonably requireto enable them to make their determination whether or not to provide their approval of theSubstitute pursuant to Section 6.2, including:

(a) the name and address of the proposed Substitute;

(b) unless such proposed Substitute is a publicly traded entity, the names of the proposedSubstitute’s shareholders or members together with the share capital or partnership ormembership interests, as the case may be, held by each of them;

(c) the manner in which the proposed Substitute will be financed and the extent to whichsuch financing is committed (to the extent relevant);

(d) copies of the proposed Substitute’s financial statements (audited, if available) for its threemost recent financial years (or such shorter period as such entity has been in existence)or, in the case of a special purpose company, its opening balance sheet;

(e) a copy of the proposed Substitute’s organizational documents; and

(f) details of the resources available to the proposed Substitute and the proposedSubstitute’s qualifications, experience and technical competence to perform theobligations of Developer under the Project Agreement, including the names,qualifications, experience and technical or other professional competence of theproposed Substitute’s directors and any key personnel who will have responsibility for theday-to-day management of its participation in the Project.



Schedule 19-13

7. SUBSTITUTION

7.1 Substitution Effective Date

If the Enterprises approve (or, pursuant to Section 6.2(b), are deemed to approve) a proposedSubstitute pursuant to Section 6.2, the Substitute shall execute a duly completed SubstituteAccession Agreement substantially in the form set out in Exhibit B to this Agreement and submit itto the Enterprises (with a copy to the Colorado State Controller and the other parties to thisAgreement). Such agreement shall become effective on and from the earlier of (a) the date onwhich the Colorado State Controller countersigns the Substitute Accession Agreement and (b)the date that is 10 Calendar Days after the date on which the Colorado State Controller receivesthe completed Substitute Accession Agreement from Developer (the “Substitution EffectiveDate”).

7.2 Effectiveness of Substitution

On and from the Substitution Effective Date:

(a) the Substitute shall become a party to the Project Agreement and this Agreement inplace of Developer;

(b) Developer shall be immediately released from its obligations arising under, and cease tobe a party to, the Project Agreement and this Agreement;

(c) the Substitute shall exercise and enjoy the rights and perform the obligations ofDeveloper under the Project Agreement and this Agreement, including, without limitation,any and all undischarged obligations of Developer that were the subject of any planapproved by the Enterprises pursuant to Section 6.2(a)(iv)(B)(II); and

(d) the Enterprises shall owe their obligations (including any undischarged obligations of theEnterprises that were otherwise required to be performed by the Enterprises prior to theSubstitution Effective Date) under the Project Agreement and this Agreement to suchSubstitute in place of (i) Developer and (ii) if a Step-in Date has previously occurred, anyStep-in Entity.

7.3 Facilitation of Transfer

The Enterprises shall use Reasonable Efforts to facilitate the transfer to the Substitute ofDeveloper’s obligations under the Project Agreement and this Agreement.

7.4 Settlement of Outstanding Financial Liabilities

(a) The Substitute shall pay to the Enterprises any amount due from Developer to theEnterprises under the Project Agreement and this Agreement as of the SubstitutionEffective Date within 30 Calendar Days after such Substitution Effective Date (or, if later,within 30 Calendar Days after the date of notice from the Enterprises to the Substitute ofsuch amount).

(b) If the Substitute fails to satisfy its obligations pursuant to Section 7.4(a), the Enterprisesshall be entitled to exercise their rights under the Project Agreement in respect of theamount so due and unpaid.

7.5 Consequences of Substitution

On and from the Substitution Effective Date:

(a) subject to Section 7.4 and the Substitute’s obligation to perform any and all undischargedobligations of Developer that were the subject of any plan approved by the Enterprisespursuant to Section 6.2(a)(iv)(B)(II), any right of termination under the Project Agreementor this Agreement or any other right under the Project Agreement or this Agreementpreviously suspended by virtue of Section 4.1 and/or Section 5.4 shall be of no furthereffect and the Enterprises shall not be entitled to terminate either the Project Agreementor this Agreement by virtue of any act, omission or circumstance (including any breach,Developer Default, Noncompliance Points, Construction Closure Deductions or Operating



Schedule 19-14

Period Closure Deductions) that occurred or accrued prior to the Substitution EffectiveDate;

(b) if any Step-in Entity is a party to or has any obligations under the Project Agreement orthis Agreement on the Substitution Effective Date, such Step-in Entity shall cease to be aparty thereto and hereto and shall be discharged from all obligations thereunder andhereunder; and

(c) the Enterprises, the Collateral Agent and the Substitute (replacing Developer as a party)(each acting reasonably) shall enter into a direct agreement on substantially the sameterms as this Agreement.

8. REINSTATEMENT OF REMEDIES

If:

(a) an Enterprise Notice has been given;

(b) the Developer Default that is the subject-matter of such notice is continuing and has notbeen remedied or waived by the Enterprises; and

(c) either:

no Step-in Entity or Substitute becomes a party to the Project Agreement and(i)this Agreement pursuant to Section 5.3 or 7.2(a), as applicable, prior to therelevant Cure Period Completion Date; or

a Step-in Entity becomes a party to the Project Agreement and this Agreement(ii)pursuant to Section 5.3, as applicable, prior to the relevant Cure PeriodCompletion Date, but the Step-in Period relating to such Step-in Entity endswithout a Substitute becoming a party thereto and hereto,

then, on and from the relevant Cure Period Completion Date, the Enterprises shall be entitled to:

act upon any and all grounds for termination available to it in relation to the(iii)Project Agreement in respect of any Developer Defaults that have not beenremedied or otherwise waived by the Enterprises;

pursue any and all available claims and exercise any and all available remedies(iv)against Developer; and

if and to the extent that they are then entitled to do so under the Project(v)Agreement, take, initiate, join in or support any action of the type referred to inSection 4.1(b).

9. REJECTION OF THE PROJECT AGREEMENT IN BANKRUPTCY OR INSOLVENCYPROCEEDINGS

(a) If the Project Agreement is rejected by a trustee or debtor-in-possession, or terminated,as a result of any Insolvency Event involving Developer and, within 150 Calendar Daysafter such rejection or termination, the Collateral Agent shall so request and shall certifyin writing to the Enterprises that the Collateral Agent or the Collateral Agent’s Substituteintends to perform the obligations of Developer as and to the extent required under theProject Agreement, the Enterprises shall execute and deliver to the Collateral Agent (or,subject to prior compliance with the provisions of, and procedures set out in, Sections 6and 7, any permitted Substitute) a new project agreement. Such new project agreementshall be on the same terms and conditions as the Project Agreement, except with respectto any obligations that have been fulfilled by Developer or by any party acting on behalf ofor stepping-in for Developer prior to such rejection or termination. References in thisAgreement to the “Project Agreement” shall be deemed also to refer to any such newproject agreement as executed.

(b) The effectiveness of any new project agreement referred to in Section 9(a) shall beconditional upon the Collateral Agent first reimbursing the Enterprises in respect of their



Schedule 19-15

costs incurred in connection with the execution and delivery of such new projectagreement.

10. TERMINATION OF THIS AGREEMENT

This Agreement shall remain in effect until the earliest to occur of:

(a) the date on which all of the obligations of Developer under the Financing Documentshave been irrevocably discharged in full to the satisfaction of the Collateral Agent;

(b) the date on which all of the parties’ respective obligations and liabilities under the ProjectAgreement and this Agreement have expired or have been satisfied in accordance withthe terms of the same; and

(c) any assignment and transfer to a Substitute has occurred pursuant to Sections 6 and 7and the Enterprises, the Collateral Agent and the Substitute shall have entered into adirect agreement pursuant to Section 7.5(c).

11. PRESERVATION OF FUNDS

The Collateral Agent acknowledges the provisions of Section 25.5 (Reinstatement) of, andSection 4 of Schedule 12 (Handback Requirements) to, the Project Agreement.

12. COMPETING STEP-IN RIGHTS

12.1 Forbearance

Notwithstanding any provision in any Principal Subcontractor Direct Agreement to the contrary,the Enterprises agree that they shall not exercise any rights of step-in, novation or other similarrights they may have under any such Principal Subcontractor Direct Agreement until:

6

(a) the Project Agreement has been terminated (other than pursuant to an assignment ortransfer to a Substitute pursuant to Sections 6 and 7) or expired;

(b) any relevant period under any Lenders’ Subcontract Direct Agreement during which theCollateral Agent is entitled to either exercise or procure the exercise of rights of step-in,novation, transfer or any similar right thereunder has expired; or

(c) if the Collateral Agent has exercised or procured the exercise of any such rights of step-in, novation, transfer or any similar right, the date of any step-out or similar event(howsoever defined) under the relevant Lenders’ Subcontract Direct Agreement hasoccurred pursuant to which the Collateral Agent (on behalf of the Lenders) has voluntarilyceased to exercise such novation, transfer or similar rights.

12.2 Expiry of Lender Rights

(a) The Collateral Agent shall notify the Enterprises promptly after the date on which theCollateral Agent either:

has determined (and the Collateral Agent shall so certify in such notice) that the(i)Collateral Agent has exhausted all of its direct or indirect legal rights andremedies pursuant to the Financing Documents or a Principal Subcontractagainst the related Principal Subcontractor, any guarantor of such PrincipalSubcontractor's obligations under the relevant Principal Subcontract and anyprovider of any Contractor Bond that has been provided by such PrincipalSubcontractor in favor of Developer in accordance with Section 9.3.2.b. of theProject Agreement; or

has determined (A) not to exercise (or to cease exercising) or (B) that, as a result(ii)of a release in full of the security interests referred to in Section 2.1(a), it and theLenders are no longer entitled to exercise), the same,

6These provisions will be adjusted as needed to reflect the terms of the Lenders’ Subcontract DirectAgreement(s), e.g., if there is no cure period thereunder.



Schedule 19-16

it being acknowledged that any determination to exercise, not to exercise or to ceaseexercising any such legal rights and remedies shall be in the sole discretion of theCollateral Agent acting in accordance with the Financing Documents.

(b) Following receipt by the Enterprises of a notice from the Collateral Agent pursuant toSection 12.2(a) (the date of such receipt, the “Subordination Date”), all of the right, titleand interest of the Collateral Agent (and each Lender) against:

the relevant Principal Subcontractor;(i)

any guarantor of such Principal Subcontractor’s obligations under the relevant(ii)Principal Subcontract; and

any provider of any Contractor Bond that has been provided by such Principal(iii)Subcontractor in favor of Developer in accordance with Section 9.3.2.b. of theProject Agreement,

pursuant to the Financing Documents or any relevant Principal Subcontract, guaranty orContractor Bond shall be subject and subordinated in all respects to all right, title andinterest of the Enterprises pursuant to the relevant Principal Subcontractor DirectAgreement.

(c) Notwithstanding any provision in any Principal Subcontractor Direct Agreement to thecontrary, the Enterprises agree that, prior to the Subordination Date, they shall notexercise any rights or remedies against any Principal Subcontractor under the relatedPrincipal Subcontractor Direct Agreement (other than rights of step-in, novation or othersimilar rights they are permitted to exercise pursuant to Section 12.1).

13. REPRESENTATIONS AND WARRANTIES

13.1 Representations and Warranties of Collateral Agent

(a) Each undersigned signatory for the Collateral Agent hereby represents and warrants thathe or she (i) is an officer of the Collateral Agent and (ii) has full and complete authority toenter into this Agreement on behalf of the Collateral Agent.

(b) The Collateral Agent hereby represents and warrants that the Collateral Agent has fullpower, right and authority to execute and perform each and all of its obligations underthis Agreement.

(c) The Collateral Agent represents and warrants that this Agreement constitutes a legal,valid and binding obligation of it enforceable against it in accordance with its terms,except as such enforceability may be limited by:

applicable bankruptcy, insolvency, reorganization, moratorium or other similar(i)laws affecting the enforcement of creditors’ rights generally; and

general principles of equity (regardless of whether such enforceability is(ii)considered in a proceeding in equity or at law).

(d) The representations and warranties in Sections 13.1(a) and (b) are made for the benefitof the Enterprises and Developer for the purpose of inducing the Enterprises andDeveloper to enter into this Agreement.

13.2 Representations and Warranties of Developer

(a) The undersigned signatory for Developer hereby represents and warrants that he or she(i) is an officer of Developer and (ii) has full and complete authority to enter into thisAgreement on behalf of Developer.

(b) Developer hereby represents and warrants that Developer has full power, right andauthority to execute and perform each and all of its obligations under this Agreement.



Schedule 19-17

(c) The representations and warranties in Sections 13.2(a) and (b) are made for the benefitof the Enterprises and the Collateral Agent for the purpose of inducing the Enterprisesand the Collateral Agent to enter into this Agreement.

13.3 Representations and Warranties of the Enterprises7

(a) [Representation as to due authority of the Enterprises’ signatories]

(b) [Representation as to power and authority of the Enterprises to execute and perform theAgreement]

(c) [Representation as to execution and delivery by and enforceability against theEnterprises]

(d) Each Enterprise represents and warrants that, as of the date of this Agreement, noEnterprise Default or, to its knowledge, Developer Default has occurred and is continuing,and there exists no event or condition that would, with the giving of notice or passage oftime or both, constitute an Enterprise Default or, to its knowledge, a Developer Default.

(e) The representations and warranties in Sections 13.3(a) to (d) are made for the benefit ofthe Collateral Agent for the purpose of inducing the Collateral Agent to enter into thisAgreement.

14. CHOICE OF LAW; JURISDICTION AND VENUE; DISPUTE RESOLUTION

14.1 Choice of Law

Colorado law, and rules and regulations issued pursuant thereto, shall be applied in theinterpretation, execution, and enforcement of this Agreement. Any provision included orincorporated herein by reference which conflicts with said laws, rules, and regulations shall benull and void. Any provision incorporated herein by reference which purports to negate thisprovision or any other Special Provision set out in Section 15.14 in whole or in part shall not bevalid or enforceable or available in any action at law, whether by way of complaint, defense, orotherwise. Any provision rendered null and void by the operation of this provision shall notinvalidate the remainder of this Agreement, to the extent capable of execution.

8

14.2 Jurisdiction and Venue

All suits or actions related to this Agreement shall be filed and proceedings held in the State andexclusive venue shall be in State or Federal court in the City of Denver, and each party heretoirrevocably waives:

(a) any objection which it may have at any time to the laying of venue of any such suit, actionor proceeding brought in any such court;

(b) any claim that any such suit, action or proceeding has been brought in an inconvenientforum; and

(c) the right to object that such court does not have any jurisdiction with respect to such suit,action or proceeding.

7Note to Proposers: Representations to be included reflecting terms of Enterprise representations to be includedin Schedule 2 in a future Addendum.

8Note to Proposers: The Colorado Attorney General’s Office and the Colorado State Controller’s Office areconsidering modifications of this provision (and equivalent provisions set out in this Schedule 19 and the ProjectAgreement) to more closely align it (and such equivalent provisions) with customary market practice. Anyresulting changes will be reflected in a future Addendum.



Schedule 19-18

15. GENERAL PROVISIONS

15.1 Amendments and Waivers

(a) This Agreement may only be amended by a written amendment duly executed by allparties together with, to the extent required by Law, the Colorado State Controller or itsdesignee.

(b) Except to the extent otherwise expressly provided in this Agreement:

any waiver of, or consent to any departure from, the requirements of any(i)provision of this Agreement shall be approved in the discretion of the party givingit and shall be effective only if it is in writing by such party, and only in the specificinstance, for the specific time, subject to the specific conditions and for thespecific purpose for which it has been given;

no failure on the part of any party to exercise, and no delay in exercising, any(ii)right or power under this Agreement shall operate as a waiver of such right orpower; and

no single or partial exercise of any right or power under this Agreement, including(iii)any right to give or withhold any consent or approval, nor any abandonment ordiscontinuance of steps to enforce such a right or power, shall preclude or renderunnecessary any other or further exercise of such right or the exercise of anyother right.

(c) For certainty, any waiver of any provision of this Agreement made by a party other thanthe Enterprises that would result in a violation of Part B of Schedule 16 (MandatoryTerms) to the Project Agreement shall be null and void unless approved by theEnterprises (in their discretion).

15.2 Successors and Assigns

(a) Except to the extent expressly provided hereunder, no party to this Agreement mayassign or transfer any part of its rights or obligations hereunder without the prior writtenconsent of the other parties, provided that the Collateral Agent may assign or transfer itsrights and obligations hereunder in accordance with the terms of this Agreement to asuccessor Collateral Agent in accordance with the Financing Documents (in connectionwith which, the Enterprises agree to enter into a new direct agreement with the successorCollateral Agent on terms that are substantially the same as those of this Agreement).

(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto andtheir respective successors and permitted assigns.

15.3 Severability

(a) If any provision (or part of any provision) of this Agreement is ruled invalid by a courthaving proper jurisdiction, then the parties shall:

promptly meet and negotiate a substitute for such provision or part thereof which(i)shall, to the greatest extent legally permissible, effect the original intent of theparties; and

if necessary or desirable, and to the extent the parties agree to do so, apply to(ii)the court which declared such invalidity for an interpretation of the invalidatedprovision (or part thereof) to guide the negotiations.

(b) If any provision (or part of any provision) of this Agreement shall, for any reason, be heldto be invalid, illegal, or unenforceable in any respect, such provision (or part thereof) shallnot affect the validity, legality and enforceability of any other provision of (or the other partof such provision) or any other documents referred to in this Agreement, and thisAgreement shall be construed as if such invalid, illegal, or unenforceable provision (orpart thereof) had never been contained herein.



Schedule 19-19

15.4 Entire Agreement

Subject to Section 1.3(b), this Agreement constitutes the entire agreement among theEnterprises, Developer and the Collateral Agent concerning the subject matter hereof andsupersedes all prior negotiations, representations, and agreements, either oral or written, amongthe parties with respect to their subject matter.

15.5 Notices and Communications

(a) Any notice shall be given in writing by means of physical (including delivery by courierand postage pre-paid certified or registered mail), digital or electronic communication, butexcluding the use of social media, messengering, broadcast and equivalent services, tothe relevant party at the following addresses, as applicable:

DeveloperAttention: [ ][Address]Phone: [ ]Email: [ ]

EnterprisesAttention: [ ][Address]Phone: [ ]Email: [ ]

Collateral AgentAttention: [ ][Address]Phone: [ ]Email: [ ]

Colorado StateControllerAttention: [ ][Address]Phone: [ ]Email: [ ]

(b) A notice shall be deemed to have been delivered and received:

upon receipt (confirmed by automatic answer back, read receipt or equivalent(i)evidence of receipt), if validly transmitted by digital or electronic distributionbefore 3:00 p.m. (local time at the place of receipt) on a Working Day;

on the next Working Day following receipt (confirmed by automatic answer back,(ii)read receipt or equivalent evidence of receipt), if validly transmitted by digital orelectronic distribution on or after 3:00 p.m. (local time at the place of receipt) on aWorking Day;

upon receipt, if physically delivered in person; or(iii)

if delivered by courier or postage pre-paid certified or registered mail, on the date(iv)of receipt as shown by the addressee’s registry or certification receipt or on thedate receipt at the appropriate address is refused, as shown on the records ormanifest of the United States Postal Service or independent courier.

(c) The parties will notify each other in writing of any change of address and/or contactinformation, such notification to become effective five Working Days after notification.

15.6 Effect of Breach

Without prejudice to any rights a party may otherwise have, a breach of this Agreement shall notof itself give rise to a right to terminate the Project Agreement.

15.7 Counterparts

This Agreement (or an amendment or waiver in respect to this Agreement) may be executed inone or more counterparts (including by electronic signature and/or scanned or digitaltransmission). Any single counterpart or a set of counterparts executed, in either case, by each ofthe parties and, to the extent required by Law, the Colorado State Controller or its designee, shallconstitute a full and original instrument for all purposes.

15.8 No Third Party Beneficiaries

It is not intended by any of the provisions of this Agreement to create any third party beneficiaryrights hereunder. Notwithstanding the foregoing, the duties, obligations and responsibilities of theparties with respect to third parties shall remain as imposed by Law.



Schedule 19-20

15.9 No Partnership

Nothing in this Agreement is intended or shall be construed to create any partnership, jointventure or similar relationship or among the parties. None of the parties shall hold itself outcontrary to the terms of this Section 15.9.

15.10 No Interference

Developer joins in this Agreement to acknowledge and consent to the arrangements set out andagrees not to knowingly do or omit to do anything that may prevent any party from enforcing itsrights under this Agreement. For certainty, Developer has no right to enforce any provision of thisAgreement.

15.11 Collateral Agent Liability

(a) Notwithstanding anything to the contrary in this Agreement, but subject to Sections 3.2, 5(but solely to the extent the Collateral Agent or any of its Affiliates is the Step-In Entity),13.1 and 15.14(e) the Collateral Agent shall not have any liability to the Enterprises underthis Agreement, unless:

the Collateral Agent expressly assumes such liability in writing; or(i)

such liability arises as a result of or is made in response to any breach of Law or(ii)fraud, willful misconduct, criminal conduct, recklessness, bad faith or grossnegligence by or of the Collateral Agent.

(b) The Enterprises acknowledge and agree that the Collateral Agent shall not be obligatedor required to perform any of Developer’s obligations under the Project Agreement,except during any Step-in Period and then solely to the extent the Collateral Agent or anyof its Affiliates is the Step-In Entity.

15.12 No Personal Liability

Each Enterprise’s authorized representatives, including the Enterprise Representative, are actingsolely as agents and representatives of the Enterprises when carrying out the provisions of orexercising the power or authority granted to them under this Agreement, and, as such, none ofthem shall not be liable either personally or as employees of the Enterprises for actions in theirordinary course of employment.

15.13 Costs and Expenses of the Parties

Except as otherwise expressly provided in this Agreement or the Project Agreement, each partyshall bear its own costs and expenses (including legal and other advisers’ fees and expenses) inconnection with the preparation, negotiation, execution and performance of this Agreement andall other related agreements.

15.14 Special Provisions

(a) Controller’s Approval

This Agreement shall not be valid until it has been approved by the Colorado StateController or its designee.

(b) Governmental Immunity

No term or condition of this Agreement shall be construed or interpreted as a waiver,express or implied, of any of the immunities, rights, benefits, protections, or otherprovisions, of the Colorado Governmental Immunity Act, C.R.S. §§24-10-101 et seq., orthe Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now orhereafter amended.



Schedule 19-21

(c) Compliance with Law

The Private Sector Parties shall strictly comply with all applicable Federal and State laws,rules, and regulations in effect or hereafter established, including, without limitation, lawsapplicable to discrimination and unfair employment practices.

(d) Binding Arbitration Prohibited

The State does not agree to binding arbitration by any extra-judicial body or person. Anyprovision to the contrary in this Agreement or incorporated herein by reference shall benull and void.

(e) Software Piracy Prohibition

State or other public funds payable under this Agreement shall not be used for theacquisition, operation, or maintenance of computer software in violation of federalcopyright laws or applicable licensing restrictions. Each of the Private Sector Partieshereby certifies and warrants that, during the term of this Agreement and any extensions,such Private Sector Party has and shall maintain in place appropriate systems andcontrols to prevent such improper use of public funds. If the State determines that aPrivate Sector Party is in violation of this provision, the State may exercise any remedyavailable at law or in equity or under this Agreement, including, without limitation,termination of this Agreement, as well as any remedy consistent with Federal copyrightlaws or applicable licensing restrictions.

(f) Employee Financial Interest / Conflict of Interest

The signatories aver that, to their knowledge, no employee of the State has any personalor beneficial interest whatsoever in the service or property described in this Agreement.Neither Private Sector Party has any interest and shall acquire any interest, direct orindirect, that would conflict in any manner or degree with the performance of such PrivateSector Party’s services and no Private Sector Party shall employ any person having suchknown interests.

(g) Vendor Offset (C.R.S. §§24-30-202 (1) and 24-30-202.4)

Subject to C.R.S. §24-30-202.4 (3.5), the Colorado State Controller, or the Enterprises,may withhold payment under the State’s vendor offset intercept system for debts owed toState agencies for:

unpaid child support debts or child support arrearages;(i)

unpaid balances of tax, accrued interest, or other charges specified in C.R.S.(ii)§39-21-101, et seq.;

unpaid loans due to the Student Loan Division of the Department of Higher(iii)Education;

amounts required to be paid to the Unemployment Compensation Fund pursuant(iv)to Article 70-82 of Title 8 of the C.R.S.; and

other unpaid debts owing to the State as a result of final agency determination or(v)judicial action.

(h) Public Contracts for Services

Each Private Sector Party certifies, warrants, and agrees that it does not knowinglyemploy or contract with an illegal alien who will perform work under this Agreement andwill confirm the employment eligibility of all employees who are newly hired foremployment in the United States to perform work under this Agreement, throughparticipation in the E-Verify Program or the CDOT program established pursuant toC.R.S. §8-17.5-102(5)(c). Neither Private Sector Party shall knowingly employ or contractwith an illegal alien to perform work under this Agreement or enter into a contract with asubcontractor that fails to certify to such Private Sector Party that the subcontractor shall



Schedule 19-22

not knowingly employ or contract with an illegal alien to perform work under thisAgreement. Each Private Sector Party:

shall not use E-Verify Program or CDOT program procedures to undertake pre-(i)employment screening of job applicants while this Agreement is being performed;

shall notify the subcontractor and the contracting State agency within three(ii)Calendar Days if such Private Sector Party has actual knowledge that asubcontractor is employing or contracting with an illegal alien for work under thisAgreement;

shall terminate the subcontract if a subcontractor does not stop employing or(iii)contracting with the illegal alien within three Calendar Days of receiving thenotice; and

shall comply with reasonable requests made in the course of an investigation,(iv)undertaken pursuant to C.R.S. § 8-17.5-102(5), by the Colorado Department ofLabor and Employment.

If a Private Sector Party participates in the CDOT program, such Private Sector Partyshall deliver to the contracting State agency, institution of higher education or politicalsubdivision a written, notarized affirmation, affirming that such Private Sector Party hasexamined the legal work status of such employee, and shall comply with all of the otherrequirements of the CDOT program. If a Private Sector Party fails to comply with anyrequirement of this provision or C.R.S. § 8-17.5-101, et seq., the contracting Stateagency may terminate this Agreement for breach and, if so terminated, such PrivateSector Party shall be liable for damages.

[remainder of page left intentionally blank; signature page follows]



Schedule 19-23

[To insert signature blocks.]



Schedule 19-24

Annex AList of Financing Documents

A. Financing Agreements

1. [Insert list at Financial Close]

B. Security Documents

1. [Insert list at Financial Close]



Schedule 19-25

Exhibit A

Form of Step-in Entity Accession Agreement

[on Step-in Entity letterhead]

[Date]

To: Colorado High Performance Transportation EnterpriseColorado Bridge Enterprise

Cc: [ ]

From: [Step-in Entity]

Ladies and Gentlemen:

Reference is made to: (a) the Project Agreement for the Central 70 Project dated as of [ ] (as the samemay be amended, modified or supplemented from time to time in accordance with its terms, the “ProjectAgreement”) among the Colorado High Performance Transportation Enterprise and Colorado BridgeEnterprise (together, the “Enterprises”) and [ ] (the “Developer”); and (b) the Direct Agreement dated as of[ ] (as the same may be amended, modified or supplemented from time to time in accordance with itsterms, the “Direct Agreement”), among the Enterprises, Developer and [ ] as Collateral Agent (as definedtherein).

Capitalized terms used but not defined in this Step-in Entity Accession Agreement shall have themeanings given to them in in the Direct Agreement.

1. We hereby confirm that: (a) we are a Step-in Entity pursuant to Section 5 of the DirectAgreement; and (b) this is a Step-in Entity Accession Agreement for purposes of the DirectAgreement.

2. We acknowledge and agree that, upon and by reason of our execution of this Step-in EntityAccession Agreement, we shall become a party as a Step-in Entity to the Project Agreement andthe Direct Agreement jointly and severally with Developer and, accordingly, shall have the rightsand powers and assume the obligations of Developer under the Project Agreement and the DirectAgreement in accordance with the terms of the Direct Agreement.

3. Our notice address and contact details for purposes of Section 15.5 of the Direct Agreement areas follows:

[Step-in Entity name]Attention: [ ][Address]Phone: [ ]Email: [ ]

4. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in theinterpretation, execution, and enforcement of this Step-in Entity Accession Agreement. Anyprovision included or incorporated herein by reference which conflicts with said laws, rules, andregulations shall be null and void. Any provision incorporated herein by reference which purportsto negate this provision in whole or in part shall not be valid or enforceable or available in anyaction at law, whether by way of complaint, defense, or otherwise. Any provision rendered nulland void by the operation of this provision shall not invalidate the remainder of this Step-in EntityAccession Agreement, to the extent capable of execution.

5. All suits or actions related to this Step-in Entity Accession Agreement shall be filed andproceedings held in the State and exclusive venue shall be in State or Federal court in the City ofDenver, and the Step-in Entity named below irrevocably waives:




Schedule 19-26



The terms set out herein are hereby agreed to:

[To insert signature block for Step-in Entity.]



Schedule 19-27

Exhibit BForm of Substitute Accession Agreement

[on Substitute letterhead]

[Date]

To: Colorado High Performance Transportation EnterpriseColorado Bridge Enterprise

Cc: [ ]

From: [Substitute]


Reference is made to: (a) the Project Agreement for the Central 70 Project dated as of [ ] (as the samemay be amended, modified or supplemented from time to time in accordance with its terms, the “ProjectAgreement”) among the Colorado High Performance Transportation Enterprise and Colorado BridgeEnterprise (together, the “Enterprises”) and [ ] (the “Developer”); and (b) the Direct Agreement dated as of[ ] (as the same may be amended, modified or supplemented from time to time in accordance with itsterms, the “Direct Agreement”), among the Enterprises, Developer and [ ] as Collateral Agent (as definedtherein).

Capitalized terms used but not defined in this Substitute Accession Agreement shall have the meaningsgiven to them in in the Direct Agreement.

1. We hereby confirm that: (a) we are a Substitute pursuant to Sections 6 and 7 of the DirectAgreement; and (b) this is a Substitute Accession Agreement for purposes of the DirectAgreement.

2. We acknowledge and agree that, pursuant to Section 7.1 of the Direct Agreement, we shallbecome a party as a Substitute to the Project Agreement and the Direct Agreement on and fromthe earlier of the date on which the Colorado State Controller countersigns this SubstituteAccession Agreement and the date on which this Substitute Accession Agreement is otherwisedeemed to be effective pursuant to Section 7.1 of the Direct Agreement and, accordingly, shallhave the rights and powers and assume the obligations of Developer under the ProjectAgreement and the Direct Agreement in accordance with the terms of the Direct Agreement.

3. We hereby represent and warrant to the Enterprises that each representation and warranty madeby Developer set out in Part 1 of Schedule 2 (Representations and Warranties) to the ProjectAgreement is true and correct as of the date hereof, except that, for such purposes, eachreference to “Developer” shall be deemed to be a reference to us in our capacity as Substitute.

4. Our notice address and contact details for purposes of Section 15.5 of the Direct Agreement asfollows:

[Substitute name]Attention: [ ][Address]Phone: [ ]Email: [ ]

5. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in theinterpretation, execution, and enforcement of this Substitute Accession Agreement. Any provisionincluded or incorporated herein by reference which conflicts with said laws, rules, and regulationsshall be null and void. Any provision incorporated herein by reference which purports to negatethis provision in whole or in part shall not be valid or enforceable or available in any action at law,whether by way of complaint, defense, or otherwise. Any provision rendered null and void by theoperation of this provision shall not invalidate the remainder of this Substitute AccessionAgreement, to the extent capable of execution.



Schedule 19-28

6. All suits or actions related to this Substitute Accession Agreement shall be filed and proceedingsheld in the State and exclusive venue shall be in State or Federal court in the City of Denver, andeach party hereto irrevocably waives:




The terms set out herein are hereby agreed to:

[To insert signature block for Substitute.]

Agreed for and on behalf of:

[To insert signature blocks for BE, HPTE and State Controller.]



Schedule 19-29

Part B: Form of Principal Subcontractor Direct Agreement

This [Construction / O&M]9

Contractor Direct Agreement (this “Agreement”) is dated as of [ ] andmade among:

(1) Colorado High Performance Transportation Enterprise (“HPTE”), a government-owned businesswithin, and a division of, the Colorado Department of Transportation (“CDOT”);

(2) Colorado Bridge Enterprise, a government-owned business within CDOT (“BE” and, together withHPTE, each individually an “Enterprise” and, together, the “Enterprises”);

(3) [ ], a [describe type of legal entity and reference state of incorporation/organization] (“Developer”);

(4) [ ], a [describe type of legal entity and reference state of incorporation/organization] (“PrincipalSubcontractor”); [and]

(5) [[ ], a [describe type of legal entity and reference state of incorporation/organization] and [ ], a[describe type of legal entity and reference state of incorporation/organization] (“Guarantors”)]

10.

RECITALS

Whereas:

(A) The Enterprises and Developer have entered into a Project Agreement for the Central 70 Projectdated as of [ ] (as the same may be amended, modified or supplemented from time to time inaccordance with its terms, the “Project Agreement”), in connection with the design, construction,financing, operation and maintenance of a portion of the I-70 East corridor in Greater Denver,Colorado (the “Project”) as more fully described in the Project Agreement.

(B) The Principal Subcontractor, Developer [and the Guarantors] have entered into a [Construction /O&M] Contract for the Project dated as of [ ] (as the same may be amended, modified orsupplemented from time to time in accordance with its terms, the “Principal Subcontract”), inconnection with the [design and construction / operation and maintenance] of the Project as morefully described in the Principal Subcontract.

11

(C) [The Guarantors have provided to Developer a [payment and performance] guaranty dated as of [] (as the same may be amended, modified or supplemented from time to time in accordance withits terms, the “Guaranty”) of the Principal Subcontractor’s obligations under the PrincipalContract.]

(D) It is a condition precedent to Financial Close under Schedule 1 (Financial Close) to the ProjectAgreement that the parties hereto execute this Agreement.

Now, therefore, in consideration of their mutual undertakings and agreements hereunder, and for othergood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, theparties undertake and agree as follows:

1. DEFINITIONS, INTERPRETATION AND RELATIONSHIP TO PROJECT AGREEMENT

1.1 Definitions

(a) Capitalized terms used but not defined in this Agreement shall have the meanings givento them in Part A of Annex A (Definitions and Abbreviations) of the Project Agreement.

(b) Except as otherwise specified herein, or as the context may otherwise require, thefollowing terms have the respective meanings set out below for all purposes of thisAgreement:

9Form to be modified throughout where indicated to reflect execution by the Construction Contractor or the O&MContractor. If necessary (depending on Developer’s approach to Subcontracting the Work), refer to another typeof Principal Subcontractor.

10To be modified as necessary to reflect the inclusion or absence of a Guarantor.

11To be modified as necessary to reflect any Guaranty arrangements.



Schedule 19-30

“Enterprise Step-in” has the meaning given to it in Section 2.2(c)(iii) of thisAgreement.

“Enterprise Step-inRights Period”

has the meaning given to it in Section 2.2(c) of this Agreement.

[“Guaranty”] [has the meaning given to it in the Recitals.]

“Principal Subcontract” has the meaning given to it in the Recitals.

“Private SectorParties”

means Developer[,] [and] the Principal Subcontractor [and theGuarantors].

“Subcontractor Bond” means any Contractor Bond provided by the PrincipalSubcontractor in favor of Developer in accordance withSection 9.3.2.b. of the Project Agreement.

“Subordination Date” means the date on which all of the right, title and interest of theCollateral Agent (and each Lender) against the PrincipalSubcontractor[, the Guarantors] and the provider of theSubcontractor Bond becomes subject and subordinated in allrespects to the right, title and interest of the Enterprisespursuant to this Agreement in accordance with Section 12.2 ofthe Lenders Direct Agreement.

1.2 Interpretation

(a) Headings and other internal references

Headings are inserted for convenience only and shall not affect interpretation of(i)this Agreement.

Except as the context may otherwise provide, the words “herein”, “hereof” and(ii)“hereunder”, and words of similar import, shall be construed to refer to thisAgreement in its entirety and not to any particular provision of it.

Except as otherwise expressly provided or as the context may otherwise provide,(iii)a reference to any Section within this Agreement is a reference to suchSection of this Agreement.

(b) Common terms and references

The singular includes the plural and vice versa.(i)

Words preceding “include”, “includes”, “including” and “included” shall be(ii)construed without limitation by the words that follow.

The word “promptly” means as soon as reasonably practicable in light of then-(iii)prevailing circumstances.

(c) References to agreements, documents and Persons

Except as otherwise expressly provided in this Agreement, a reference:

to an agreement or other document shall be construed to be a reference to such(i)agreement or other document (including any schedules, annexes or exhibitsthereto) as it may be amended, modified or supplemented from time to time inaccordance with its terms;

to a Person includes such Person’s permitted successors, assigns and(ii)transferees; and

where the Principal Subcontractor is at any time a consortium, partnership, joint(iii)venture or any other unincorporated grouping acting together for a common



Schedule 19-31

purpose, to the “Principal Subcontractor” shall be deemed to include reference toeach and every member or partner of the same and the liability of each andevery such member or partner under this Agreement shall be deemed to be jointand several.

(d) Discretion

Except as otherwise expressly provided in this Agreement, where this Agreementprovides that any consent, approval or like assent is to be made or given in the“discretion” of a Person, it shall be made or given only in the sole and absolute discretionof such Person (which discretion includes the ability to refrain from giving, or to imposeconditions on, such consent, approval or like assent), which discretionary decisionregarding any consent, approval or like assent shall be final and binding and not subjectto dispute other than with respect to:

a good faith dispute concerning whether the consent, approval or like assent was(i)discretionary; or

a breach of the implied covenant of good faith and fair dealing.(ii)

1.3 Relationship to Project Agreement

(a) In the event of any conflict, ambiguity or inconsistency between the provisions of(i) [either][any of] the Project Agreement[, the Guaranty] or the Principal Subcontract and(ii) the provisions of this Agreement, the provisions of this Agreement shall prevail.

(b) Notwithstanding the foregoing, nothing in this Agreement amends or modifies (i) any ofDeveloper’s obligations under the Project Agreement, (ii) any of the PrincipalSubcontractor’s obligations under the Principal Subcontract [or (iii) any of the Guarantor’sobligations under the Guaranty].

2. UNDERTAKINGS

2.1 Performance Standards

(a) The Principal Subcontractor [represents and warrants to the Enterprises that it hasperformed, and]

12hereby undertakes to perform[,] such portion of the Work that is the

subject of the Principal Subcontract pursuant to and in compliance with the terms,conditions and requirements of:

the Principal Subcontract; and(i)

the Project Agreement, to the extent applicable in accordance with its terms or(ii)the terms of the Principal Subcontract,

provided that, without prejudice to Section 12.2(c) of the Lenders Direct Agreement, theEnterprises shall not be entitled to exercise against the Principal Subcontractor any rightsor remedies to which they become entitled as a result of a breach of any of [therepresentations and warranties or] undertakings made pursuant to this Section 2.1(a)until the earliest of:

the Subordination Date; and(iii)

following the release in writing of all right, title and interest of the Collateral Agent(iv)(and each Lender) against the Principal Subcontractor[, the Guarantors] and theprovider of the Subcontractor Bond, the occurrence of [the Expiry Date (or, ifearlier, the Termination Date)]

13[the Termination Date].

14

(b) The Enterprises agree that the Principal Subcontractor [and the Guarantors] shall:

12Delete representations and warranties if any Principal Subcontractor Direct Agreement is deliveredsimultaneously with the execution of the relevant Principal Subcontract.

13Delete with respect to the Construction Contract.

14Delete with respect to the O&M Contract.



Schedule 19-32

be entitled in any action or proceedings by the Enterprises in connection with, or(i)as a result of having exercised their rights pursuant to, this Agreement to raiseequivalent rights of defense of liability (except for set off or counterclaim) as [it /they] would have against Developer under[, respectively,] the PrincipalSubcontract [and the Guarantee]; and

have no liability under, or as a result of the Enterprises exercising their rights(ii)pursuant to, this Agreement that is of greater severity or of longer duration than[it / they] would have had if the Enterprises had been[, respectively,] a party tothe Principal Subcontract as joint employer together with Developer [and a jointbeneficiary of the Guaranty together with Developer].

2.2 Step-in Rights

(a) The Principal Subcontractor shall not exercise, or seek to exercise, any right which maybe or becomes available to it to:

terminate, or treat as terminated or repudiated, the Principal Subcontract or its(i)engagement thereunder; or

discontinue or suspend the performance of any of its obligations under the(ii)Principal Subcontract,

without first giving to the Enterprises at least 60 Calendar Days’ (or, in the case of apayment default, 45 Calendar Days’) prior notice in accordance with Section 2.2(b),provided that, if the expiry period of such notice occurs prior to the expiry of theEnterprise Step-in Rights Period, the Principal Subcontractor shall not be entitled toexercise, or seek to exercise, its relevant right(s) unless and until:

the Enterprises deliver a notice to the Principal Contractor pursuant to(iii)Section 2.2(c) during the Enterprise Step-in Rights Period initiating an EnterpriseStep-in and subsequently fail to remedy the circumstances that gave rise to thedelivery of the notice from the Principal Subcontractor by the date which is30 Calendar Days after the specified date referred to in Section 2.2(c)(iii); or

the Enterprise Step-in Rights Period has expired without the Enterprises having(iv)given any notice to the Principal Contractor pursuant to Section 2.2(c).

(b) Any notice given by the Principal Subcontractor to the Enterprises pursuant toSection 2.2(a) shall specify:

the potential grounds for the Principal Subcontractor to exercise any right(i)described in Sections 2.2(a)(i) or 2.2(a)(ii), together with details regarding anyother unperformed obligations of, and uncured breaches by, Developer under thePrincipal Subcontract of which the Principal Subcontractor is aware;

all amounts due and payable by Developer to the Principal Subcontractor under(ii)the Principal Subcontract, if any, on or before the date of such notice and whichremain unpaid at such date, and the nature of Developer’s obligation to pay suchamounts; and

the amount of any payments that the Principal Subcontractor reasonably(iii)foresees shall become due and payable from Developer to the PrincipalSubcontractor under the Principal Subcontract prior to the expiry of theEnterprise Step-in Rights Period.

(c) At any time during the period:

on and from the earlier of:(i)

(A) the date of the Enterprises’ receipt of a notice (if any) from the PrincipalSubcontractor pursuant to Section 2.2(a); and

(B) the Subordination Date;



Schedule 19-33

to and including the later of:(ii)

(A) the 60th

Calendar Day (or, in the case of a payment default, the 45th

Calendar Day) after the Enterprises’ receipt of a notice (if any) from thePrincipal Subcontractor pursuant to Section 2.2(a); and

(B) the 30th

Calendar Day after the date of receipt by the Enterprises of anotice from the Collateral Agent delivered pursuant to Section 12.2(a) ofthe Lenders Direct Agreement,

(the “Enterprise Step-in Rights Period”), the Enterprises shall give notice to the PrincipalSubcontractor [and the Guarantors] as to whether the Enterprises (or their designee):

shall from the date specified in such notice (which specified date shall be no later(iii)than the last Calendar Day of such Enterprise Step-in Rights Period) assume allrights and obligations of, and succeed to the interests of, Developer under thePrincipal Subcontract[, the Guaranty] and any Subcontractor Bond to theexclusion and in place of Developer (an “Enterprise Step-in”), provided that,following any such assumption and succession, each of the Principal Subcontract[and the Guaranty] and any Subcontractor Bond shall remain in full force andeffect; or

waive their rights to effect an Enterprise Step-in pursuant to Section 2.2(c)(iii).(iv)

(d) [Each of] the Principal Subcontractor [and the Guarantors] acknowledges and agrees thatthe Enterprises, in their discretion, shall have the right to require [it] [them]:

following the occurrence of both:(i)

(A) the release in writing of all right, title and interest of the Collateral Agent(and each Lender) against the Principal Subcontractor[, the Guarantors]and the provider of the Subcontractor Bond; and

(B) [the Expiry Date (or, if earlier, the Termination Date)]15

[the TerminationDate],

16

to consent to any assignment and transfer of the benefit of this Agreement[, theGuaranty] and the Principal Subcontract (including the benefit of all warrantiesand guarantees, express or implied, provided under the Principal Subcontract)pursuant to Section 34.2.1 of the Project Agreement;

to enter into a novation agreement to effect any Enterprise Step-in or any(ii)assignment and transfer referred to in Section 2.2(d)(i); and

to cause the issuer of any Subcontractor Bond to enter into such agreements or(iii)other documents as reasonably necessary to grant the Enterprises the benefitspreviously available to Developer under such Subcontractor Bond following anyEnterprise Step-in or any assignment and transfer referred to in Section 2.2(d)(i).

(e) [Each of] the Principal Subcontractor [and the Guarantors] acknowledges and agrees [it][they] shall not take any action (or refrain from taking any action) in a manner that iscalculated or intended to directly or indirectly prejudice or frustrate any of the activitiescontemplated under Section 34.1 of the Project Agreement or any transfer or assignmentcontemplated under Section 34.2 of the Project Agreement and this Section 2.2(d).

(f) If an Enterprise Step-in occurs, the Enterprises shall accept liability for Developer’sobligations under the Principal Subcontract and shall as soon as practicable thereaftercure any outstanding breach by Developer which is capable of cure by Enterprises, ineach case subject to Developer’s rights under the terms of the Principal Subcontract.

15Delete with respect to the Construction Contract.

16Delete with respect to the O&M Contract.



Schedule 19-34

(g) For certainty, the Enterprises shall not be under any obligation to the PrincipalSubcontractor, nor shall the Principal Subcontractor have any claim or cause of actionagainst the Enterprises, unless and until an Enterprise Step-in occurs.

(h) Developer acknowledges and agrees that the Principal Subcontractor [and theGuarantors] shall [each] be entitled to rely on any notice or instruction given to it by theEnterprises’ exercising their Enterprise Step-in rights under this Agreement as conclusiveevidence that the Enterprises are entitled to exercise such rights.

3. ENTERPRISES’ REMEDIES

The rights and benefits conferred upon the Enterprises by this Agreement are in addition to:(a) any other rights and remedies they may have against Developer, the Principal Subcontractor[and/or the Guarantors]; and (b) any other rights and benefits they may have with respect to anySubcontractor Bond or any other Contractor Bond.

4. CHOICE OF LAW; JURISDICTION AND VENUE; DISPUTE RESOLUTION

4.1 Choice of Law

Colorado law, and rules and regulations issued pursuant thereto, shall be applied in theinterpretation, execution, and enforcement of this Agreement. Any provision included orincorporated herein by reference which conflicts with said laws, rules, and regulations shall benull and void. Any provision incorporated herein by reference which purports to negate thisprovision or any other Special Provision set out in Section 5.12 in whole or in part shall not bevalid or enforceable or available in any action at law, whether by way of complaint, defense, orotherwise. Any provision rendered null and void by the operation of this provision shall notinvalidate the remainder of this Agreement, to the extent capable of execution.

4.2 Jurisdiction and Venue

All suits or actions related to this Agreement shall be filed and proceedings held in the State andexclusive venue shall be in State or Federal court in the City of Denver, and each party heretoirrevocably waives:




5. GENERAL PROVISIONS

5.1 Amendments and Waivers

(a) This Agreement may only be amended by a written amendment duly executed by allparties together with, to the extent required by Law, the Colorado State Controller or itsdesignee, unless the amendment to this Agreement is expressly allowed or required tobe made in any other manner pursuant to this Agreement and Law.

(b) Except to the extent otherwise expressly provided in this Agreement:

any waiver of, or consent to any departure from, the requirements of any(i)provision of this Agreement shall be approved (in the discretion) of the partygiving it and shall be effective only if it is in writing by such party, and only in thespecific instance, for the specific time, subject to the specific conditions and forthe specific purpose for which it has been given;

no failure on the part of any party to exercise, and no delay in exercising, any(ii)right or power under this Agreement shall operate as a waiver of such right orpower; and



Schedule 19-35

no single or partial exercise of any right or power under this Agreement, including(iii)any right to give or withhold any consent or approval, nor any abandonment ordiscontinuance of steps to enforce such a right or power, shall preclude or renderunnecessary any other or further exercise of such right or the exercise of anyother right.

5.2 Successors and Assigns

(a) No party to this Agreement may assign or transfer any part of its rights or obligationshereunder without the prior written consent of the other parties.

(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto andtheir respective successors and permitted assigns.

5.3 Severability

(a) If any provision (or part of any provision) of this Agreement is ruled invalid by a courthaving proper jurisdiction, then the parties shall:

promptly meet and negotiate a substitute for such provision or part thereof which(i)shall, to the greatest extent legally permissible, effect the original intent of theparties; and

if necessary or desirable, and to the extent the parties agree to do so, apply to(ii)the court which declared such invalidity for an interpretation of the invalidatedprovision (or part thereof) to guide the negotiations.

(b) If any provision (or part of any provision) of this Agreement shall, for any reason, be heldto be invalid, illegal, or unenforceable in any respect, such provision (or part thereof) shallnot affect the validity, legality and enforceability of any other provision of (or the other partof such provision) or any other documents referred to in this Agreement, and thisAgreement shall be construed as if such invalid, illegal, or unenforceable provision (orpart thereof) had never been contained herein.

5.4 Entire Agreement

Subject to Section 1.3(b), this Agreement constitutes the entire agreement among the partieshereto concerning the subject matter hereof and supersedes all prior negotiations,representations, and agreements, either oral or written, among the parties with respect to theirsubject matter.

5.5 Notices and Communications

(a) Any notice shall be given in writing by means of physical (including delivery by courierand postage pre-paid certified or registered mail), digital or electronic communication, butexcluding the use of social media, messengering, broadcast and equivalent services, tothe relevant party at the following addresses, as applicable:

DeveloperAttention: [ ][Address]Phone: [ ]Email: [ ]

EnterprisesAttention: [ ][Address]Phone: [ ]Email: [ ]

PrincipalSubcontractorAttention: [ ][Address]Phone: [ ]Email: [ ]

GuarantorAttention: [ ][Address]Phone: [ ]Email: [ ]

Colorado StateControllerAttention: [ ][Address]Phone: [ ]Email: [ ]

(b) A notice shall be deemed to have been delivered and received:

upon receipt (confirmed by automatic answer back, read receipt or equivalent(i)evidence of receipt), if validly transmitted by digital or electronic distributionbefore 3:00 p.m. (local time at the place of receipt) on a Working Day;

on the next Working Day following receipt (confirmed by automatic answer back,(ii)read receipt or equivalent evidence of receipt), if validly transmitted by digital or



Schedule 19-36

electronic distribution on or after 3:00 p.m. (local time at the place of receipt) on aWorking Day;

upon receipt, if physically delivered in person; or(iii)

if delivered by courier or postage pre-paid certified or registered mail, on the date(iv)of receipt as shown by the addressee’s registry or certification receipt or on thedate receipt at the appropriate address is refused, as shown on the records ormanifest of the United States Postal Service or independent courier.

(c) The parties shall notify each other in writing of any change of address and/or contactinformation, such notification to become effective five Working Days after notification.

5.6 Counterparts

This Agreement (or an amendment or waiver in respect to this Agreement) may be executed inone or more counterparts (including by electronic signature and/or scanned or digitaltransmission). Any single counterpart or a set of counterparts executed, in either case, by each ofthe parties and, to the extent required by Law, the Colorado State Controller or its designee, shallconstitute a full and original instrument for all purposes.

5.7 No Third Party Beneficiaries

It is not intended by any of the provisions of this Agreement to create any third party beneficiaryrights hereunder. Notwithstanding the foregoing, the duties, obligations and responsibilities of theparties with respect to third parties shall remain as imposed by Law.

5.8 No Partnership

Nothing in this Agreement is intended or shall be construed to create any partnership, jointventure or similar relationship or among the parties. None of the parties shall hold itself outcontrary to the terms of this Section 5.8.

5.9 No Interference

Developer joins in this Agreement to acknowledge and consent to the arrangements set out andagrees not to knowingly do or omit to do anything that may prevent any party from enforcing itsrights under this Agreement. For certainty, Developer has no right to enforce any provision of thisAgreement.

5.10 No Personal Liability

Each Enterprise’s authorized representatives, including the Enterprise Representative, are actingsolely as agents and representatives of the Enterprises when carrying out the provisions of orexercising the power or authority granted to them under this Agreement, and, as such, none ofthem shall not be liable either personally or as employees of the Enterprises for actions in theirordinary course of employment.

5.11 Costs and Expenses of the Parties

Except as otherwise expressly provided in this Agreement, the Project Agreement, the PrincipalSubcontract [or the Guaranty], each party shall bear its own costs and expenses (including legaland other advisers’ fees and expenses) in connection with the preparation, negotiation, executionand performance of this Agreement and all other related agreements.



Schedule 19-37

5.12 Special Provisions17

(a) Controller’s Approval

This Agreement shall not be valid until it has been approved by the Colorado StateController or its designee.

(b) Governmental Immunity

No term or condition of this Agreement shall be construed or interpreted as a waiver,express or implied, of any of the immunities, rights, benefits, protections, or otherprovisions, of the Colorado Governmental Immunity Act, C.R.S. §§24-10-101 et seq., orthe Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now orhereafter amended.

(c) Compliance with Law

The Private Sector Parties shall strictly comply with all applicable Federal and State laws,rules, and regulations in effect or hereafter established, including, without limitation, lawsapplicable to discrimination and unfair employment practices.

(d) Binding Arbitration Prohibited

The State does not agree to binding arbitration by any extra-judicial body or person. Anyprovision to the contrary in this Agreement or incorporated herein by reference shall benull and void.

(e) Software Piracy Prohibition

State or other public funds payable under this Agreement shall not be used for theacquisition, operation, or maintenance of computer software in violation of federalcopyright laws or applicable licensing restrictions. Each of the Private Sector Partieshereby certifies and warrants that, during the term of this Agreement and any extensions,such Private Sector Party has and shall maintain in place appropriate systems andcontrols to prevent such improper use of public funds. If the State determines that aPrivate Sector Party is in violation of this provision, the State may exercise any remedyavailable at law or in equity or under this Agreement, including, without limitation,termination of this Agreement, as well as any remedy consistent with Federal copyrightlaws or applicable licensing restrictions.

(f) Employee Financial Interest / Conflict of Interest

The signatories aver that, to their knowledge, no employee of the State has any personalor beneficial interest whatsoever in the service or property described in this Agreement.Neither Private Sector Party has any interest and shall acquire any interest, direct orindirect, that would conflict in any manner or degree with the performance of such PrivateSector Party’s services and no Private Sector Party shall employ any person having suchknown interests.

(g) Vendor Offset (C.R.S. §§24-30-202 (1) and 24-30-202.4)

Subject to C.R.S. §24-30-202.4 (3.5), the Colorado State Controller, or the Enterprises,may withhold payment under the State’s vendor offset intercept system for debts owed toState agencies for:

unpaid child support debts or child support arrearages;(i)

unpaid balances of tax, accrued interest, or other charges specified in C.R.S.(ii)§39-21-101, et seq.;

17Note to Proposer: The Special Provisions are included to ensure that the relevant Principal Subcontractcomplies with State Law upon step-in by the Enterprises.



Schedule 19-38

unpaid loans due to the Student Loan Division of the Department of Higher(iii)Education;

amounts required to be paid to the Unemployment Compensation Fund pursuant(iv)to Article 70-82 of Title 8 of the C.R.S.; and

other unpaid debts owing to the State as a result of final agency determination or(v)judicial action.

(h) Public Contracts for Services

Each Private Sector Party certifies, warrants, and agrees that it does not knowinglyemploy or contract with an illegal alien who will perform work under this Agreement andwill confirm the employment eligibility of all employees who are newly hired foremployment in the United States to perform work under this Agreement, throughparticipation in the E-Verify Program or the CDOT program established pursuant toC.R.S. §8-17.5-102(5)(c). None of the Private Sector Parties shall knowingly employ orcontract with an illegal alien to perform work under this Agreement or enter into a contractwith a subcontractor that fails to certify to such Private Sector Party that thesubcontractor shall not knowingly employ or contract with an illegal alien to perform workunder this Agreement. Each Private Sector Party:

shall not use E-Verify Program or CDOT program procedures to undertake pre-(i)employment screening of job applicants while this Agreement is being performed;

shall notify the subcontractor and the contracting State agency within three(ii)Calendar Days if such Private Sector Party has actual knowledge that asubcontractor is employing or contracting with an illegal alien for work under thisAgreement;

shall terminate the subcontract if a subcontractor does not stop employing or(iii)contracting with the illegal alien within three Calendar Days of receiving thenotice; and

shall comply with reasonable requests made in the course of an investigation,(iv)undertaken pursuant to C.R.S. § 8-17.5-102(5), by the Colorado Department ofLabor and Employment.

If a Private Sector Party participates in the CDOT program, such Private Sector Partyshall deliver to the contracting State agency, institution of higher education or politicalsubdivision a written, notarized affirmation, affirming that such Private Sector Party hasexamined the legal work status of such employee, and shall comply with all of the otherrequirements of the CDOT program. If a Private Sector Party fails to comply with anyrequirement of this provision or C.R.S. § 8-17.5-101, et seq., the contracting Stateagency may terminate this Agreement for breach and, if so terminated, such PrivateSector Party shall be liable for damages.

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Schedule 19-39

[To insert signature blocks.]

Central 70 Project: Project AgreementSchedule 22 (Forms of Legal Opinions)


Schedule 22-1

Schedule 22Forms of Legal Opinions

Part A: Form of Enterprises’ Legal Opinion1


We have served, in a limited role, as advisory counsel (but not as bond counsel or disclosure counsel) tothe Colorado High Performance Transportation Enterprise (“HPTE”) and the Colorado Bridge Enterprise(“BE” and, together with HPTE, the “Enterprises”) in connection with the execution and delivery of theProject Agreement for the Central 70 Project (the “Project Agreement”) between the Enterprises and [ ], a[ ] (the “Developer”), the other Enterprise Closing Agreements (as defined in the Project Agreement), andthe Interagency Agreement between the Enterprises and the Colorado Department of Transportation forthe Central 70 Project (the “IAA”). Capitalized terms used but not defined in this Opinion Letter shall havethe meanings given to them in Part A of Annex A (Definitions and Abbreviations) of the ProjectAgreement.

In this connection we have examined: (1) the Project Agreement; (2) the Project Agreement Amendment;(3) the Lenders Direct Agreement; (4) each Principal Subcontractor Direct Agreement; (5) each otherEnterprise Closing Agreement; and (6) the IAA. The documents referred to in (1) through (6), together,are referred to in this Opinion Letter as the “Enterprise Opinion Documents”.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of suchother documents, public records and other instruments and have conducted such other investigations aswe have deemed necessary for the purposes of this Opinion Letter. As to questions of fact material toour Opinion Letter, we have relied upon such certified proceedings and certifications of public officialsfurnished to us, without undertaking to verify the same by independent investigation.

We have relied on the representations of Developer contained in the Project Agreement.

We have assumed that:

(i) Developer has complied with all legal requirements pertaining to its status as such status relatesto its right to enforce and comply with the Enterprise Opinion Documents against the Enterprises,the Lenders and any other parties thereto;

(ii) Each Enterprise Opinion Document submitted to us for review is accurate and complete, eachsuch document that is an original is authentic, each such document that is a copy conforms to anauthentic original, and all signatures on each such document are genuine; and

(iii) The form and content of all Enterprise Opinion Documents submitted to us as unexecuted finaldrafts do not differ in any respect relevant to this Opinion Letter from the form and content of suchEnterprise Opinion Documents as executed and delivered.

Whenever an opinion expressed herein is stated to be to our knowledge (or other words of similar importare used), it means, without (except to the extent expressly set forth therein) investigation, analysis, orreview of court or other public records or our files, or inquiry of persons, the conscious awareness of factsor other information by the lawyers within the Colorado Attorney General’s Office who have had activeinvolvement in negotiating and preparing the Enterprise Opinion Documents.

All opinions expressed herein regarding compliance with law are limited to the laws of the State ofColorado, in each case, as in effect on the date of this Opinion Letter.

1 Note to Proposers: The form of legal opinion set out in this Part A remains under internal review by the Enterprises and the AG’sOffice and therefore is subject to amendment.

Central 70 Project: Project AgreementSchedule 22 (Forms of Legal Opinions)


Schedule 22-2

We are of the opinion that:

1. The Enterprises are both government-owned businesses within the meaning of Section 20(2)(d)of Article X of the Colorado Constitution, duly created, organized and existing under the laws ofthe State, and specifically Part 8 of Title 43 of the Colorado Revised Statutes.

2. The Enterprises have the legal power, right and authority to execute, deliver and perform theEnterprise Opinion Documents, subject to the terms and conditions of each such document.

3. The Enterprises have duly authorized by all necessary action the execution, delivery andperformance of, and have duly and validly executed and delivered, the Enterprise OpinionDocuments to which each is a party.

4. The Enterprise Opinion Documents constitute legal, valid and binding obligations of theEnterprises or, in relation to any Enterprise Opinion Document to which only one of theEnterprises is a party, the relevant Enterprise enforceable against them or it, respectively, inaccordance with its terms, except to the extent limited by applicable bankruptcy, insolvency,reorganization, moratorium or other similar laws affecting the enforceability of the rights ofcreditors generally, by general principles of equity, by the exercise by the State and itsgovernmental bodies of the police power inherent in the sovereignty of the State and by theexercise by the United States of the powers delegated to it by the Constitution of the UnitedStates.

5. [Except as disclosed in writing by the Enterprises to Developer (a copy of which disclosure isattached to this Opinion Letter),] no action, suit, proceeding, investigation or litigation is pendingor, to the best of our knowledge, overtly threatened in writing that challenges: (a) the authority ofeither Enterprise to execute, deliver or perform any of the Enterprise Opinion Documents; (b) thelegality, validity or enforceability of any of the Enterprise Opinion Documents as against eitherEnterprise; or (c) the authority of any representative of either Enterprise executing any of theEnterprise Opinion Documents.

6. All required consents and approvals have been obtained with respect to the execution, deliveryand performance by the Enterprises of the Enterprise Opinion Documents.

7. To the best of our knowledge, after due inquiry, the execution and delivery of the EnterpriseOpinion Documents has not resulted in, and the performance thereof will not result in, a defaultunder or violation of any other agreement to which the relevant Enterprise is a party or anyjudgment or decree by which the Enterprises are bound.

8. The execution and delivery by the Enterprises of the Enterprise Opinion Documents has notresulted in, and the performance thereof by the Enterprises will not result in, any violation of anyLaw applicable to the Enterprises; provided, however, that no opinion is given as to whether theEnterprise Opinion Documents comply with or are excepted from the provisions of Sections 24-91-101 through 24-91-110 and Sections 38-26-106 through 38-26-109 of the Colorado RevisedStatutes.

FOR THE ATTORNEY GENERAL OF THE STATE OF COLORADO

[ ]

Office of the Attorney General